Esteras v. United States
Oral argument transcript · No. 23-7483 · October Term 2024 · argued February 25, 2025 · the petitioner won
Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court
Advocates
- Christian J. Grostic, Cleveland, Ohio, for the petitioner
- Masha G. Hansford, Assistant to the Solicitor General, for the respondent
Transcript
From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.
Chief Justice Roberts: We will hear argument first this morning in Case 23-7483, Esteras versus United States. Mr. Grostic. ORAL ARGUMENT OF CHRISTIAN J. GROSTIC ON BEHALF OF THE PETITIONER
Christian J. Grostic: Mr. Chief Justice, and may it please the Court: In Section 3583(e), Congress listed factors that courts must consider when terminating, modifying, or revoking supervised release and omitted the factors that it intended to preclude, most important here Section 3553(a)(2)(A)'s retribution factors. 3553(a) expressly states that (a)(2)'s four subsections are the purposes of sentencing which courts must satisfy when imposing prison, a fine, or probation. Courts have wide discretion about what to consider and how to fulfill those purposes, but they do not have discretion about what purposes to satisfy. In 3583(e), Congress was surgical and removed one of those purposes: retributive Official 1 punishment under (a)(2)(A). That was different from every other sentencing option, including the otherwise identical language in the probation statute. Congress thereby precluded courts from considering (a)(2)(A)'s retributive purposes in the supervised release context, as this Court recognized in Tapia regarding the identical list in subsection (c). And the Senate report confirms what we see in the text. Under subsection (c), courts "may not" -- supervised release "may not be imposed for purposes of punishment." And the identical list in subsection (e) has the same meaning. That also fits with the history of the statute. When Congress abolished parole, it created supervised release to fulfill the -- the rehabilitative purposes following a prison sentence that satisfies (a)(2)(A). Congress gave courts tools to adjust supervision, such as extending or modifying, but only for the limited purposes listed in 3583(e). Congress did not add (a)(2)(A) to that list when --- in later amendments when it added the revocation tool and when it added additional fact -- factors to consider. Congress thus Official 1 precluded courts from relying on (a)(2)(A) in the supervised release context. I welcome the Court's questions.
Justice Thomas: How do you square your argument with provisions that more expressly limit consideration of other sentencing factors?
Christian J. Grostic: The -- what Congress did here was rely on a well-established mechanism for excluding factors, which was the negative implication canon, and, in particular, there's two aspects of that that I believe put the -- that implication at its highest here. The first, as this Court noted I believe most recently in Johnson versus Guzman Chavez, when -- when Congress specifies one item from a list of associated -- an associated group or series, it excludes those that it does not mention. Here, we don't just have an associated group or series. We have a defined list. We know the exact universe. So that -- that puts that associated group or series implication at its highest point. The second, as this Court said in -- for example, in Bittner, when Congress includes Official 1 language in one statute but omits it in a neighbor, that also brings the negative implication canon to the fore. And, here, we have, again, multiple neighbors where (a)(2)(A) is listed and an -- otherwise identical language in the probation statute. So, again, that's at its highest there. And one further point. The -- Congress did actually remove two factors from -- from 3583(e), the second being (a)(3), the kinds of sentences available. If that were also permissive, as the government contends, that would be nonsensical. Courts could or could not, at their option, consider other kinds of sentences. So, when we put all of those things together, we believe that the negative implication canon here is at its highest, and -- and Congress thus excluded the (a)(2)(A) factors.
Chief Justice Roberts: How do you -- how precise is the split? I mean, let's say under (c) the judge says: I have to consider what's necessary to protect the public from further crimes, right, and because it was such a Official 1 serious offense and there was no respect for the law, I'm going to do this or that. Is -- is that acceptable or not?
Christian J. Grostic: I believe that would be acceptable because the judge specifically tied it to a permissible factor. And I --
Chief Justice Roberts: Even though, in doing so, he recited an impermissible factor?
Christian J. Grostic: I -- I -- I believe so, and I -- I -- I do understand Your Honor's question, and I believe that that puts -- that's the most puzzling thing about what Congress did here, but I also believe Congress solved that puzzle for us in the text because Congress must have known when they drafted this statute that there was the possibility that a reader could see overlap or surplusage. And yet it still did two things. In 3553(a), it listed the factors in separate subsections. And then, in 3583(e) and (c), it obviously excluded one of those. So I believe what Congress was directing is focus on the permissible factors. Obviously, we don't need to fly-speck every word that a court uses. And as long as the district court makes clear it's relying on a permissible Official 1 factor, that would be permissible.
Justice Alito: Let me give you another example. Under the statute, the judge must consider the nature and circumstances of the offense. But, on your reading of the statute, the judge may not consider the seriousness of the offense. And how is a judge supposed to do that? Let me give you this -- let me give you an example. The offense is a bank robbery. Fifty thousand dollars is stolen in the robbery. The robber terrorizes the bank employees and the clients who are present in the bank at the time, and one of the clients has a heart attack. So the judge -- how is the judge going to consider the nature and circumstances of that offense without considering the severity of the offense?
Christian J. Grostic: Under -- understood, Your Honor. And -- and what I would point to, again, is, in the text of the statute, I believe, by splitting those two factors out, Congress, in identifying the nature and circumstances, was talking about the type of -- the type of offense involved, the circumstances Official 1 that surrounded it, many of the facts that Your Honor just pointed to. Those facts allow a court to make a judgment about the seriousness of the offense if that's permissible. But those facts also allow a court to make judgments about other things, like the need to protect the public, the need to deter. And so, when Congress in (a)(2)(A) -- specifically said consider the need to reflect the seriousness of the offense, that points to the retributive purpose. And so what Congress was doing there is saying consider those facts, and then how you use those facts is what we direct in (a)(2)(A).
Justice Alito: Well, I'm sorry, I don't really understand the answer. I just don't see the difference between the nature and circumstances of the offense and the severity of the offense.
Christian J. Grostic: Well --
Justice Alito: Let me ask you -- let me ask you this as to where your argument leads. It could mean that there's a violation if -- I'll give you three possibilities. Maybe there Official 1 are more, but I'll give you three. One, there's a violation if the judge refers by -- by name to the particular statutory provision that he can't consider. That's number one. Number two is that it's a magic words test. So there's a violation if the judge says anything, uses the words "seriousness of the offense, respect for the law, provide just punishment for the offense." Three is the reviewing court has to look at the essence of what the judge is doing, and if the reviewing court thinks that the essence goes to the prohibited factor, the factor you think is prohibited, there's a violation. Which one is it?
Christian J. Grostic: Your Honor, I -- I believe it would be closest to the second, although I'd like to explain further. The -- the most important thing here is that district courts orient their decision-making around what Congress directed.
Justice Alito: Well, I mean, I think those are the three choices. So, if it's -- is Official 1 it the -- is it a magic words test? Is the judge okay if the judge doesn't use the magic words? Or do you look beyond that?
Christian J. Grostic: I think we look -- and the reason I -- I know the magic words is something I'm not supposed to say, right, and yet I -- I indicated that anyway. And this is -- this is my reasoning. The first is, again, the -- the most important thing is that district courts direct their analysis to the factors that Congress indicated they should direct to. How a reviewing court reviews that is going to be based on the words that the court uses. That's true in every context on appeal. But the -- the -- the words that a court uses in this context are for a purpose, and (a)(2)(A)'s purpose, as this Court again recognized in Tapia, was about that -- retributive purpose.
Justice Alito: All right. One last --
Christian J. Grostic: That's --
Justice Alito: -- one last try. You know, in -- in reading your brief, I couldn't Official 1 help thinking how this would go over with the trial judges I used to talk to all the time. They want to know: What am I supposed to do or what can't I do? And -- and I don't know. Which of the three is it? Am I safe if I just don't use the magic words, I don't cite this statute?
Christian J. Grostic: I -- I think what courts need to do is direct their analysis towards deterring, protecting the public, and rehabilitation.
Justice Jackson: And is that because we're talking about supervised release?
Christian J. Grostic: That's exactly right.
Justice Jackson: I mean, I -- I -- I sort of think we have to orient this in the right way. Courts sentence in different functions. There are different things that are happening. So, when you have an original offense, Congress directs in 3553(a) that the court shall impose a sentence sufficient but not greater than necessary to comply with the purposes set forth in paragraph 2. All right. So we have a direct reference to purposes being relevant to the Official 1 sentencing exercise. The court, in determining the particular sentence, shall consider, and among the things are the nature and circumstances that you talked about with Justice Alito. But, clearly, purposes are something different in the statute. That's in the original sentencing exercise. But then you have a situation in which the court sentences someone to a term of imprisonment, they impose supervised release in lieu of what used to be probation or whatnot as a result of the sentence, and then we have a different set of instructions in the statute for what you're supposed to do with respect to supervised release. So, to start, are you supposed to consider punishment or retribution in the context of imposition of simper -- of supervised release?
Christian J. Grostic: No, Your Honor. And -- and that's quite clear in the statute. And the reason is because the court is directed to fulfill that purpose with the prison sentence. So the person has committed an offense, a judgment about how serious the Official 1 offense has been made. The court decides this length of a prison term is the appropriate retributive sanction for that and imposes that sanction. Now, moving to the supervised release context about what follows, because there is no parole, Congress said: We recognize that there could be value still to the court providing rehabilitative services to an offender and, at the same time, to manage that transition back into society to make sure that the public is protected at every turn.
Justice Jackson: And so the purposes there relate to other things. You're not imposing supervised release to punish the person for the crime that they committed. That's the incarcerative term that you've already imposed. Is that right?
Christian J. Grostic: That's correct. And -- and -- and then, in -- later on, when we're talking about extending, modifying, those are responses then to a person's potential actions while on supervised release.
Justice Jackson: And, in fact, you could revoke a person's supervised release even Official 1 for non-criminal behavior.
Christian J. Grostic: That's correct.
Justice Jackson: So you're not necessarily punishing them at least theoretically for a revocation. You are trying to figure out what is necessary to get this person to conform to the conditions of supervised release that you've imposed.
Christian J. Grostic: That's -- that's exactly correct. And -- and what's happening is, at the initial sentencing, the judge is making their best forward-looking determination, after this person is released, what conditions are going to be necessary, what term is going to be appropriate, what's going to satisfy these purposes.
Justice Jackson: So -- so, theoretically, we're completely sort of outside of the realm of punishment now. We're in the world of supervised release, and the court is being instructed through these directions in the statute that preclude consideration of punishment that we're now thinking about rehabilitation and deterrence and the kinds of things that are necessary to operate fairly a Official 1 supervised release system.
Christian J. Grostic: That -- that's correct. And -- and after that initial judgment, what we're talking about is a person on supervised release. Their conduct might shift what the judge now considers is necessary to meet those factors, rehabilitation, deterrence --
Justice Gorsuch: Mr. --
Christian J. Grostic: -- or protecting the public.
Justice Gorsuch: Mr. Grostic, in the real world, an individual comes before a judge having violated a term of supervised release and is remanded to prison. In what world does he think he's not being punished?
Christian J. Grostic: The -- I -- I understand that -- that a -- a person probably thinks they're punished -- being punished in that world. I wouldn't -- I wouldn't dispute that.
Justice Gorsuch: Yeah.
Christian J. Grostic: At the same time, what the district court is instructed to do is not to say: You have done something wrong here and, because of that wrongness, I'm going to measure Official 1 how wrong it is and I'm going to punish you as a result. What it's doing is trying to say: I thought initially this was going to be sufficient to rehabilitate, to deter, and --
Justice Gorsuch: And -- and -- and now I find it's not.
Christian J. Grostic: And now I find it's not. So I'm going to --
Justice Gorsuch: And so, instead of being free, you're -- you're going to prison.
Christian J. Grostic: -- I'm going to adjust what -- what I'm doing. I thought that initially my prison term --
Justice Gorsuch: I'm adjusting what I'm doing by sending you to prison.
Christian J. Grostic: Correct.
Justice Gorsuch: Yeah.
Christian J. Grostic: I --
Justice Gorsuch: And -- and on -- on -- on the exclusio unius point, which I -- I -- I take as a strong one, as I read (e), it -- it says you -- you effectively must consider these factors, which I think, certainly, from an -- you know, a linguistic Official 1 perspective, means that you don't have to consider other factors. I'm not sure it quite goes so far to say you must not consider other factors. Do you follow me?
Christian J. Grostic: I do follow. And -- and --
Justice Gorsuch: Help me with that.
Christian J. Grostic: Well, that's going back to my answer to Justice Thomas. I mean, the -- this Court has adopted a series of -- of -- in a series of decisions, guideposts, obviously, for how we can determine when that -- that negative implication canon is at its highest. We believe it's at its highest here. And it's not just a matter of how courts review a statute. It's also the backdrop against what Congress drafted.
Justice Gorsuch: I accept that -- I accept that it's at its highest, but its highest, it strikes me, would only -- only get you so far normally, unless we have something extra to suggest that they must -- need not consider the other factors. It wouldn't -- it wouldn't take you so Official 1 far as to must not and maybe particularly given that Congress has elsewhere said you -- you must not consider other factors. What do I do about that?
Christian J. Grostic: Well, in -- in this context, Your Honor, we believe this is the clearest way that Congress has spoken in the Sentencing Reform Act, and it's by --
Justice Gorsuch: Even though, in -- when it comes to setting supervised release initially, Congress has said you may not consider certain factors?
Christian J. Grostic: Well, in setting initially, the language of 3583(c) is "shall consider" and then the list of factors.
Justice Gorsuch: Yeah -- yeah. But -- but --
Christian J. Grostic: It also there does not say "shall not."
Justice Gorsuch: Correct. But there are places where Congress says you may not consider certain factors, aren't there?
Christian J. Grostic: I -- I don't believe so. Not -- not in this context.
Justice Jackson: And is -- and -- and Official 1 in those situations in other contexts, isn't that statement being made in the context of the universe of factors, the world -- the possible world of factors, and so they isolate one and say: Don't consider this. I thought your strongest argument on this point was the fact that the reference being made here is to a defined set. So we have 10 factors to begin with. That is the universe. And then, in this particular circumstance, they leave out two. So it seems odd to believe that they still considered -- you know, or they still wanted those two to be a permissible consideration under those circumstances.
Christian J. Grostic: Yeah, that -- that's correct, Your Honor. And -- and I would add again that we can look that -- look at that provision in comparison to the otherwise identical probation statute. If Congress truly meant that in both contexts anything was permissive, then that language in the probation statute, to the extent they apply, is essentially the same language that we're reading into 3583(c) and (e). Official
Justice Gorsuch: So, Mr. Grostic, I think what I was thinking of, and I do want your help with this, is, you know, Congress has said in (a) that the factors set forth in 3553(a) -- this is 3582(a), I'm sorry -- recognizing imprisonment is not an appropriate means of -- of promoting correction or rehabilitation -- there, we have clear language saying "may not" or "shall not" consider certain things.
Christian J. Grostic: Well --
Justice Gorsuch: We don't -- we don't have that here. So what do we do about that?
Christian J. Grostic: -- in Tapia, this Court did not say that that was an outright bar on considering that factor actually.
Justice Gorsuch: Not for certain -- it is for certain purposes.
Christian J. Grostic: Precisely.
Justice Gorsuch: Right.
Christian J. Grostic: And -- and so, in Tapia, the Court recognized that 3583(c) was a more clear way to outright bar considering of a factor.
Justice Gorsuch: Yeah.
Christian J. Grostic: (a) works in tandem, Official 1 obviously, with -- with the instructions for imposing prison generally.
Justice Gorsuch: Right. So there we have a clear -- clear way of Congress telling us certain things are out of bounds.
Christian J. Grostic: Well, what Congress did there is -- is, in imposing prison, tell courts they can consider rehabilitative factors.
Justice Gorsuch: But not for certain purposes.
Christian J. Grostic: But not for -- but not for lengthening or imposing --
Justice Gorsuch: Yeah, I get all that.
Christian J. Grostic: Right.
Justice Gorsuch: We're going around the same tree here together. But -- but we don't have language in this statute saying "may not" for any purpose.
Christian J. Grostic: That's correct. And -- and I -- our position is, and I believe that when Congress drafted against the backdrop of the negative implication canon, that this was a more clear way than 3582(a) to exclude the --
Justice Gorsuch: Okay. Official
Christian J. Grostic: -- the non-listed factors.
Justice Sotomayor: Counsel, I've been thinking of this case because I keep going back to the question that Justice Alito did, which is we have a backdrop that sentencing courts can look at almost anything. And this is not stopping sentencing courts from looking at any evidence whatsoever.
Christian J. Grostic: Correct.
Justice Sotomayor: What it's saying instead is: You can't use that evidence for certain purposes.
Christian J. Grostic: That's correct.
Justice Sotomayor: And so it's not that it's a list of factors or evidence that you can or cannot use. It's more what purpose you're using that evidence for, correct?
Christian J. Grostic: That's correct. And -- and just as in the initial sentencing context, if a court, say -- say, refused -- said I don't believe that deterrence is a proper purpose of sentencing, I refuse to consider it, that would be error because it would have refused to follow Congress's direction to -- Official
Justice Sotomayor: As to purpose. I think of this -- we do -- courts do this all the time with hearsay. We tell courts you can't use hearsay for the purpose of the truth of the matter, but you could use it for all -- for a lot of other reasons, correct?
Christian J. Grostic: Correct.
Justice Sotomayor: And we do the same thing with propensity evidence. You can look at propensity evidence. You just can't use it to -- for the purpose of -- of proof of propensity, but you can use it for -- to prove intent --
Christian J. Grostic: Correct.
Justice Sotomayor: -- or knowledge or a lot of other reasons. So it's not -- what you are basically saying is you can use anything you want, District Court Judge; you just can't use it for this purpose.
Christian J. Grostic: Correct.
Justice Sotomayor: All right.
Christian J. Grostic: And that follows from -- from the structure of the entire statute. As -- as Justice Jackson brought up, the initial sentencing, (a)(2)(A) is satisfied. The Official 1 supervised release is imposed for these additional purposes. 3583(d) instructs courts about how to consider what conditions they might impose. It also omits (a)(2)(A) because, again, this is not for a retributive purpose.
Justice Sotomayor: And you said earlier that you don't mind -- it is a magic words requirement. When we admit hearsay, don't use it for the truth. We say, if you're using it for the truth, you've committed error. Are you using it for another purpose? You're okay.
Christian J. Grostic: Right. And -- and, again, I know that that's -- I'm not supposed to say this is magic words, and it isn't magic words, except to the extent about how courts are reviewing what a district court does. The same as in any other appellate context, we look at the words that the court used. But the fundamental point is that the words reflect a purpose. They reflect that Congress said, in this context, we're taking retribution off the table. That was done for the initial -- the initial offense. Nothing can change about the person's conduct that would Official 1 make the need to punish that original offense more stark now. And if there is new conduct that needs retributive punishment, the proper course is a new prosecution.
Justice Sotomayor: Now, going to --
Christian J. Grostic: It's not a supervised release --
Justice Sotomayor: -- Justice Gorsuch's point, throughout the sentencing factors, the Court routinely has said use all the 3553(a) factors. But it chose here not to do that, so there has to be a purpose for that.
Christian J. Grostic: Correct.
Justice Sotomayor: Pardon the pun of using "purpose" in another way.
Christian J. Grostic: Of course, Your Honor.
Justice Sotomayor: But, if it had wanted to say everything's there, it could have said it the way it did it everywhere else, correct?
Christian J. Grostic: Correct. And -- and, in fact, in -- in -- again, in Guzman Chavez, the Court noted by listing things in a -- in a -- in an aligned series, a group or associated series, and -- and omitting others, that means the Official 1 negative implication has force and also noted --
Justice Sotomayor: That's why the negative implication has so much force here, which is --
Christian J. Grostic: Correct.
Justice Sotomayor: -- if Congress didn't want to eliminate something from consideration -- a purpose from consideration, it had a way that it used throughout all of the sentencing provisions, but it chose explicitly to exclude something here.
Christian J. Grostic: Correct. And -- and as in -- as in Guzman Chavez, there was no catch-all provision at the end to say consider these and these others to the extent they apply. Nothing like that. And -- and colloquially even, if I -- if I may, it would be -- what -- what -- the government's position here is, courts, you must make sure you deter, you must make sure that you promote -- that you protect the public, you must make sure that you rehabilitate, and, courts, you can decide to punish someone if you want to or if you find that it's warranted here. And I don't know how courts would be Official 1 guided by that. I don't know what considerations they would -- that -- that would be appropriate to decide that. What we have are -- are established ways to impose rehabilitative punishment. They're in an initial prosecution.
Justice Sotomayor: All right. Thank you, counsel.
Justice Alito: Would you agree that the purpose of general deterrence is to cause people to respect the law and obey the law?
Christian J. Grostic: To obey the law, absolutely. I -- I do agree with that.
Justice Alito: All right. So how can -- again, we have a contradiction in this -- in your -- in the way you read this statute. The judge shall take into account what's needed to afford adequate deterrence to criminal conduct, but the judge cannot take into -- cannot do this, cannot revoke or modify supervised release to promote respect for the law.
Christian J. Grostic: The need to repote -- promote respect for the law in (a)(2)(A), because of what it's next to and how we read Official 1 that statute together, still reflects that retributive purpose.
Justice Alito: But isn't that built into the idea of deterrence?
Christian J. Grostic: Not the retributive purpose itself. Deterrence can --
Justice Alito: No, but to cause -- to cause people to respect the law and obey the law.
Christian J. Grostic: In a sense, but in (a)(2)(A), quote Congress has used "respect for the law" differently, and -- and we know that simply because of the way that they drafted the statute, that these are separate purposes that courts need to fulfill. I -- I mean, under any analysis, we -- I -- I -- I think we all agree that Congress must have done something here. And if we conclude that (a)(2)(A) and (a)(2)(B) are necessarily involved in the same thing anytime we consider (a)(2)(B), then Congress has done nothing. (a)(2)(B), every time we consider it, will involve considering (a)(2)(A).
Justice Jackson: Mr. Grostic, can -- can I get you to react to the thought that maybe Official 1 what Congress was doing was reacting to potential concerns about constitutional problems? And -- and what I mean by that is that we have a system in which judges impose penalties subject to limitations in the form of, say, the statute of maximum, right? You can only impose a -- a -- a term of imprisonment up to a certain point. When Congress crafted this statute to allow for supervised release and then permitted revocation, unless retribution, punishment, is sort of removed from the supervised release dynamic, wouldn't you run into a potential problem of having people being sentenced -- or at least this would be an argument that the defense would make -- people being sentenced in the supervised release realm above the statutory maximum because now what we're doing is punishing people, not just someone who gets the stat max for the initial offense, but then you're tacking on an extra two years, three years, whatever it is, in the revocation realm? And so part, I think, of what Congress might have been trying to do was to avoid that kind of problem by indicating very clearly that Official 1 in supervised release, we're really not about punishment. We're not trying to go -- you know, run into the same kinds of concerns that you would have if you were allowing people to go above the statutory maximum.
Christian J. Grostic: I -- I think that's possible, Your Honor. I -- I have hesitation, which I will explain.
Justice Jackson: Yes.
Christian J. Grostic: One, I do think it's possible because of the -- the considerations, the serious constitutional questions this Court identified in Cornell Johnson. My hesitation in -- in -- in just agreeing to Your Honor's question is that when Congress initially drafted 3583(e), there was no revocation provision. It was terminate, modify, extend, or refer to a new prosecution. So, in that context, there was no need to adopt a need for retributive punishment.
Chief Justice Roberts: Thank you, counsel. Justice Thomas, anything further? Justice Alito?
Justice Alito: Suppose a district Official 1 judge reads the kind of opinion you would like us to write and says: Well, how am I going to comply with this, okay? I'm going to write out in advance everything that I'm going to say and I'm going to be sure never to use the magic words, plus I'm going to put a disclaimer on -- whenever I -- I -- I do this, I'm going to have a -- a standard disclaimer: I am not taking into account this particular provision of the statute. Is the district court home free then?
Christian J. Grostic: I -- I mean, I believe it would be for appellate review, but the more important thing from reading this Court's opinion would hopefully be that the district court, acting conscientiously, as our -- as our -- in my experience, our judges do actually reorient their -- their analysis away from the retributive factors and towards the permissible factors.
Justice Alito: Reorients -- the judge reorients his or her consideration away from the seriousness of the offense but directs it to the nature and circumstances of the offense. Reorients it away from promoting respect for the Official 1 law. No, you can't do that, but you can try to promote deterrence.
Christian J. Grostic: Yes, Your Honor. The -- the -- the purposes of sentencing -- deterrence, protecting the public, and -- and rehabilitating -- would be the reorientation.
Justice Alito: You want us to write an opinion saying, Judges, when you are revoking or modifying supervised release, do not try to promote respect for the law?
Christian J. Grostic: Do not consider (a)(2)(A) because, in that context, promoting respect for the law reflects the retributive purpose because of the -- the -- the context in which it's written.
Chief Justice Roberts: Justice Sotomayor? Justice Kagan?
Justice Kagan: So, I mean, there are hypotheticals that we could throw at you all day reflecting some kind of mishmash of these factors, and -- and I think that that's the concern. So, if you were saying simply, quickly, to district courts what they should do, what they shouldn't do, what would that be? And Official 1 also, if you were providing that same kind of guidance to appellate courts, especially given, in the first couple of years, they're going to be looking at sentences that happened even before any opinion we would write, what would that be?
Christian J. Grostic: So, on the first question, Your Honor, about what directions to district courts, two points. The first would be a clear statement of the three permissible purposes, what their meaning is, and to -- to follow those, to direct the -- the analysis towards those purposes. And I do believe that there's a helpful under -- underpinning to all of those, which is forward-looking, what needs to happen for the future for this person, not -- it's obviously based on nature and circumstances, their history and characteristics, what has happened before, but not because you did this before, now we need to do this in response. Just what is needed to protect the public, to deter, and to rehabilitate. And then, for courts of appeals, I take -- I take Your Honor's question to heart Official 1 because it is this interim period, I think, that's the most important. After Tapia, we haven't seen a --
Justice Kagan: I mean, that was my experience in Tapia. I actually paid some close attention to what was happening --
Christian J. Grostic: Mm-hmm.
Justice Kagan: -- and the first couple of years, people were having a hard time figuring it out, and courts of appeals were going different ways, and then it just completely ended --
Christian J. Grostic: Right.
Justice Kagan: -- because district courts just started doing the things that we had said to do.
Christian J. Grostic: Right. And that's my experience as well. So in that interim period is kind of the most important of reviewing what the district courts have said, ensuring that they comply with -- with the -- the factors that are listed. In that interim period, unless a court -- if a court cites an (a)(2)(A) purpose and unless it has made clear I didn't mean those Official 1 words for what it seems like, I meant it for this other purpose, I mean, at that point, we're into something like normal harmless error procedural reasonableness review, which is, when a court relies on an impermissible factor, considers an impermissible factor, which is what the statute says they're not permitted to do, that's reversible. But, again, even at that point, we're talking about a vacatur to send it back to the district court. If it really did mean to impose the same sentence for the permissible purposes, it can do so and re-explain.
Chief Justice Roberts: Justice Gorsuch?
Justice Gorsuch: It seems to me the upshot of the opinion we would write is say: Don't use the word "punishment," but you can use the words "protect the public, adequately deter, and the history of this defendant." Is -- is that the gist of what -- what we'd essentially be doing here?
Christian J. Grostic: I -- I -- I believe that's -- those are -- those are kind of the key touchstones, yes. And that, again, is towards Official 1 reorienting district courts away from punishment in this context and courts --
Justice Gorsuch: Yeah, I just don't know what it says -- what it means to reorient away from punishment when you're saying: I -- I'm sending you back to prison in order to protect the public --
Christian J. Grostic: I -- I -- and --
Justice Gorsuch: -- or "given" -- or "given the history of what you've done."
Christian J. Grostic: And I understand that, Your Honor.
Justice Gorsuch: What's the delta between that and saying: I am punishing you?
Christian J. Grostic: To -- to a defendant, it may mean very little. In the context of how district courts are managing their docket and -- and the supervision docket, it's -- I -- I believe it's quite important because, at this point, under the Sixth Circuit's rule, district courts can treat a supervised release revocation the same as in an initial sentencing, where they can punish the offender for what's happened before, no matter what has changed in the meantime. Official
Justice Gorsuch: Well, they -- they can't go beyond what -- the -- the factual findings of the jury to issue a new sentence. That's not permissible. We dealt with that in Haymond, for example, right? We're now dealing in the context of supervised release. And it just -- and magic words, I -- I appreciate some words are important, but I -- I -- I -- I struggle with synonyms. And a synonym to "protecting the public" might be "punishment." A synonym to "punishment" might be "you're a bad person," which I can say. Your -- your history, you're a bad person, you've done bad things. I need to deter crime. Punishment. Thank you. I -- I -- I get it.
Chief Justice Roberts: Justice Kavanaugh?
Justice Kavanaugh: When you consider the nature and circumstances of the offense, which you can and are supposed to, what if the district judge says: Well, I'm considering the nature and circumstances of the offense, and it was a serious offense?
Christian J. Grostic: I believe if they stop Official 1 there that that's reversible error because there's no indication that it means anything other than relying on the (a)(2)(A) factor. If a court is careful and says: This was a serious offense and, therefore, I'm not -- I'm not trying to punish you, but I -- I conclude that you need to be -- that -- that I need to revoke your supervision so that we can protect the public, and that's clear in the transcript, I believe that the district court would have made clear that it's not relying on an impermissible factor. But the -- the -- again, the core here is what is the district court trying to do. And -- and I -- I do appreciate the hypotheticals. I think it's helpful to -- to -- to tease out the edges of this. But, at the same time, this is in a sense normal appellate review in -- in the sentencing context too. Has the court relied on this or not? Has the court considered this or not?
Justice Kavanaugh: I guess my question also gets to my -- when I read (a)(2)(A), I think, the -- of the three things there, the first two, seriousness of the offense Official 1 and respect for the law, are almost completely overlapping with other factors that you're supposed to consider. So that leads me to think what's left is, as Justice Gorsuch just said, the just punishment. As long as you -- avoid the word "punishment" or "punish," you should be okay.
Christian J. Grostic: And -- and two responses to that. One, I do think that the -- the additional text is important, which is the need to reflect the seriousness of the offense, the need to promote respect for -- reflecting the seriousness of the offense, I believe, does bring that back into something akin to retribution and punishment. But, secondly -- and -- and I -- I know I'm repeating myself to some extent here.
Justice Kavanaugh: That's okay.
Christian J. Grostic: But Congress was doing something here when they listed these factors separately. And when they omitted this one, I -- again, I think we can all agree Congress must have been doing something. And so the -- the sense that because Official 1 there is a sense that perhaps they overlap or surplusage, that's something Congress must have been aware of, and yet they chose to surgically remove this particular purpose --
Justice Kavanaugh: Thank you.
Christian J. Grostic: -- from this context.
Chief Justice Roberts: Justice Barrett?
Justice Barrett: So mine is a practical question as well. I mean, I -- I think Justice Sotomayor is right that we often consider evidence for some purposes, not others. And hearsay is a great example of that. But I think the questions that you're getting show a distinction between this circumstance and hearsay because, with hearsay, it's essentially you can consider it for any other purpose, assuming other evidentiary rules don't bar it, except for the truth of the matter asserted. And, here, it's just saying you can't consider it for this one purpose, but you can consider it for these other synonymous purposes. So it's like in a hearsay rule, if you could say you can't consider it for the truth of the Official 1 matter asserted, but think of all the synonyms you want for "truth." So, you know, we've -- we've pointed out the difficulties for the district judge, we've pointed out the difficulties it will pose on appellate review. What is the advantage to the defendant? Because, if you can consider it for these other overlapping purposes, like the nature and circumstances of the offense, is it really going to affect the length of the sentence? Like, why is this important?
Christian J. Grostic: So I -- I believe sometimes it will have the same result but not always, and I can point to two examples, I think. The first is conditions may have changed since the offense in a significant way where the need to protect the public, the need to deter has dropped significantly. One example would be the defendant's incapacitation or something like it. Another would be the defendant's extreme rehabilitation since the offense.
Justice Barrett: But let me just stop you right there. I thought it was nature and Official 1 circumstances of the offense. It sounds like you're talking about nature and circumstances surrounding the violation of supervised release.
Christian J. Grostic: That's correct, Your -- so (a)(1) requires considering the nature and circumstances of the offense and the history and characteristics of the offender. In all of that, there could be a significant change since the offense, is -- is my point here. If there is that significant change, then a court may think: Well, to reflect the need to -- to just -- provide just punishment, regardless of what's changed with the defendant, I need to impose a significant punishment. But, because this defendant has shown that they're rehabilitated, because this defendant is incapacitated, once I take that off the table, there's really very little need to impose incarceration. That would be one difference. The other and very practical difference, I think, for Petitioner Leaks is when someone has a state court sentence or a federal court sentence for the same conduct. I -- I -- I understand that the Official 1 statute allows the supervising court to make a new judgment on its own about whether additional time in custody or modifying supervised release is necessary to fulfill the three permissible purposes, but they may well conclude: Well, the punishment's done, that other sentence also fulfills the three permissible purposes, concurrent time is sufficient.
Chief Justice Roberts: Justice Jackson?
Justice Jackson: So, Mr. Grostic, just to sort of flesh that out some, I mean, I perceive and I think sentencing theory perceives a difference between retributive purposes and other purposes. And so, even though there may be overlap in some of the discussions that we've had, suppose you have a defendant who is on supervised release and discovers that he is terminally ill, terminally ill, six months to live. And he stops calling his probation officer. He stops doing all the things. And the probation officer comes back to court and says: I -- think this person's supervised release should be revoked because they are not Official 1 doing what it is that you've required on supervised release. Absolutely a basis for revocation. But then the question becomes, from the judge's perspective, it's not going to make any difference if I incarcerate this guy for the last six months of his life because he's not going to be able to commit other crimes, he's not -- it's not going to protect the public in any way. A judge who was imposing supervised release revocation for retributive purposes, even though the statute says you don't do that, would say it doesn't matter. What you've done is violated the conditions, and for that, you need to be punished and, therefore, back to jail. A judge who is looking at the statute and says retribution is off the table might determine not to do those things because the other purposes of punishment would not be fulfilled given this person's circumstances. Is that a concrete example of how you can separate out retributive purposes from other purposes and sentence differently as a result? Official
Christian J. Grostic: Yes, I -- I believe so. And -- and, specifically, I think that relates to the promoting respect for the law in (a)(2)(A), which is, even if there hasn't been an offense here, because there was a court order that was violated, in -- in some sense, that's disrespecting the law, and so (a)(2)(A), even if there wasn't an offense in -- in -- in Your Honor's example committed here, would allow for punishment to promote --
Justice Jackson: If punishment was on the table --
Christian J. Grostic: Correct.
Justice Jackson: -- you could still impose punishment.
Christian J. Grostic: That would -- that would be on the table, but --
Justice Jackson: Thank you.
Christian J. Grostic: -- but -- but, otherwise, no.
Chief Justice Roberts: Thank you, counsel. Ms. Hansford. 25 Official 1 ORAL ARGUMENT OF MASHA G. HANSFORD ON BEHALF OF THE RESPONDENT
Masha G. Hansford: Mr. Chief Justice, and may it please the Court: Section 3583(e) does not displace a district court's broad discretion to think about any considerations it finds helpful at a sentencing or sentence modification proceeding. Section 3583(e)(3) authorizes a court to revoke supervised release "after considering certain factors." That language makes clear that a court is required to consider the enumerated factors, but it does not prohibit the court from considering others. To take an example, if a judge tells her law clerk that the clerk may turn in his bench memo after considering the petitioner's brief, the respondent's brief, and the reply brief, that does not suggest that the law clerk is forbidden from also considering the amicus briefs. And if a college physics department announces that a student may declare a physics major after completing Physics 101, Physics 103, and Physics 104, that does not suggest the student is forbidden from also taking Physics Official 1 102. Just like Section 3583(e), those instructions set a floor, not a ceiling. Petitioners argue that because the Section 3553(a)(2)(A) factors reflect retribution, they don't belong in a supervised release revocation proceeding. And the colloquy with Justice Jackson was getting at a similar idea. But Congress knows how to limit a sentencing decision to one that serves particular purposes, and it uses express language to do so. Congress did not use that type of language here. Nor would it make sense for the Court to prohibit -- for Congress to prohibit a court from considering the (a)(2)(A) factors, which, as the discussion this morning emphasized, include the need to promote respect for the law in determining what to do about the breach of trust that court-ordered supervision that reflects and in light of the deep overlap between the factors, and I think the colloquy this morning well illustrated that that would really raise profound workability problems and, at best, would devolve into a reverse magic words requirement. Official 1 I welcome the Court's questions.
Justice Thomas: Why would you -- why would Congress write a provision like this in such a roundabout way?
Masha G. Hansford: I think the reason that Congress listed only certain factors were because those were the factors that it thought would be the primary considerations across the board. So, of course, Congress was not drafting this provision just for the revocation section. In fact, when it was drafting it, the revocation provision, (e)(3), wasn't even in the statute. But the way the statute reads now is the list of factors is in the umbrella paragraph at (e), and it covers the whole range of actions, terminating the term of supervision early, extending the term of supervision, modifying the conditions of supervision, as well as revocation. And I think that the discretion that Congress gave courts reflects that in some of those circumstances, a court may not think that the (a)(2)(A) factors, to the extent they do work beyond the other factors, need to be considered.
Justice Sotomayor: I'm -- Official
Justice Thomas: You mentioned workability. What role should that play in our assessment of the arguments here, in our interpretation of these provisions?
Masha G. Hansford: I think the profound unworkability of Petitioner's rule, which would require parsing what a court is doing in extricating the promoting respect from the law from deterrence and incapacitation considerations that are intimately intertwined, I think should give the Court a lot of pause from reading the text to say that. Now -- especially here, where Petitioner's textual argument is really an argument of negative implication. I think that Petitioners are suggesting the wrong negative implication, so the argument doesn't get off the ground. But, before drawing the inference Petitioners seek, I -- I think the Court should take cognizance of the fact that this would be a really bizarre thing for Congress to do in this way.
Justice Sotomayor: Counsel, I -- I'm having a little problem with this workability argument because there's four circuits, one of Official 1 them pretty large, the Ninth, but the Fourth, the Fifth, the Ninth -- I can't remember the fourth one -- and the Tenth, all of whom have the rule you say is unworkable, they seem to be functioning fine.
Masha G. Hansford: I think the experience in those circuits well reflects the workability problems here. First of all, most of the circuits --
Justice Sotomayor: What is the workability problem? The district court says something wrong. You have to object. Now the three people here objected or at least two of them objected, and the district court decided that instead of saying I'm doing it for dual purposes, which would have made this a harmless error case, said no, I'm not doing it for deterrence, incapacitation, or rehabilitation; I'm doing it for punishment. So the -- but, if it had been objected to, it would have been fine. If it had not been objected to, we're in harmless error territory. And -- and I don't understand that those courts have had a problem with this.
Masha G. Hansford: I think the workability Official 1 problem is extricating even in the judge's own mind the factors that are required to be considered, like the nature and circumstances of the offense and deterrence, incapacitation, from promoting respect for the law.
Justice Sotomayor: Give me --
Masha G. Hansford: Justice Sotomayor, I would direct you to take a look at pages 96, 98, 216 to 217, and 219 to 220 of the Joint Appendix, which shows how the judges in these cases were thinking about those factors, and they were all completely intertwined in their mind.
Justice Sotomayor: All right. Let's go back --
Masha G. Hansford: The pattern of --
Justice Sotomayor: -- to Justice Thomas's question, which is I see Section 3553(a)(2) normally directs district courts to consider all the relevant facts in evidence. That includes the four purposes, okay? Why would Congress have written this provision, taking out two factors, only two factors, one of which is not pertinent at all, so they were being purposeful in what they were Official 1 doing, and there was one factor that they put -- took out and then put back in. Why would they have bothered to put it back in if you're right that it was always there? Because, under your theory, it was -- whether they took it out the first time or not is irrelevant. It could always be considered. It doesn't make much sense to me that Congress was that precise in taking some things out and then very precise in putting it back in if you think it was always in to start with.
Masha G. Hansford: So I would say about that is I think Congress cared about the floor it was setting. Setting the floor a little bit higher by adding in a factor means that a court must consider --
Justice Sotomayor: But why?
Masha G. Hansford: -- a certain factor --
Justice Sotomayor: But why?
Masha G. Hansford: -- in each case. And I think --
Justice Sotomayor: Every time it -- it has done it in every other situation, it just said consider them all.
Masha G. Hansford: Sure. And I think the Official 1 reason that Congress wanted to give a court discretion not to consider the factors in this case, to the extent that they add something beyond the overlapping factors, is because Congress's view of the term of supervised release itself, I think, Congress probably thought the primary purpose of that term is a period of transition as opposed -- and that the term of imprisonment often will fully serve the retributive ends. And so, when Congress was thinking about the whole range of actions, including terminating the term of supervision early or extending the term of supervision or modifying the conditions, Congress wanted to give courts the flexibility to just think about these kind of rehabilitative considerations of how well the defendant was doing on --
Justice Jackson: But, if they overlap, Ms. Hansford, what -- what -- what kind of a gift is that? I mean, part of our discussion was how much these factors overlap. So it seems like a weird thing to say that Congress went through all the trouble of omitting this factor for the purpose of allowing Official 1 district courts not to consider this thing that you say is so intertwined with everything else that it's hard to separate out.
Masha G. Hansford: Yes, and let me explain. I think that the -- really, the place where that delta is, is the just punishment factor that Justice Kavanaugh was referring to, because, of course, the provision has three factors. And I don't think that a court can really ever not think about the seriousness of the offense, can ever really not think about promoting respect for the law in the context of assessing deterrence, and certainly not in revocation.
Justice Jackson: No, you're arguing the intertwinement. What I'm saying is the intertwinement undermines your argument that Congress omitted this to relieve district courts of having to consider those things. If they're so intertwined, then why would Congress have taken this out?
Masha G. Hansford: So two points to that. First, I want -- or one thing I want to do is give you an example of how this might work, but I also want to note that even -- that Official 1 the rule that Petitioners are asking for, which is a rule that you may not consider the factors, is a really troubling one. I think that Congress could have written a statute --
Justice Jackson: Right. What I'm trying to understand is the rule that you're asking for, which is Congress had a list of four purposes. That's the given, the -- the beginning point. And in this particular section, it omitted one, and you say it omitted one to give courts the permission not to consider it, but it can still allow courts to consider it. Ordinarily, when Congress omits something, you would think they were taking it off the table. So what we have to do is understand the circumstances under which Congress would indicate you have permission to consider something by removing it from the list.
Masha G. Hansford: So the first thing I would say is that this statute is not what gives courts permission to consider various factors. That is the background rule reflected in 3661 and decisions like Kimbrough and Concepcion. Official 1 So I think it would be a little bit of a different situation if this was what was giving courts authority in that particular thing.
Justice Jackson: Precisely. But that undermines your -- your argument. It doesn't help you. If the background rule is that you can consider everything and Congress really intended for you to be able to consider this, why would they have omitted it from this statute?
Masha G. Hansford: Sure. So let me -- I want -- I want to get back to the language that Congress would have used if it wanted to do what I think you're suggesting, Justice Jackson. But just to give an example of how this discretion might matter, consider an offender who committed -- who committed an offense and went to prison for, say, a drug distribution conspiracy. Got out, is on supervision, is doing well on supervision, is complying with the conditions, and is up under 3583(e)(1) asking for early termination. I think that the discretion the court has given -- that Congress -- I apologize -- has Official 1 given the court is to say: We're looking at how you're doing on supervision. You -- I don't -- I don't -- you're doing well. We don't think we need to deter you. You've rehabilitated, allowing us to terminate for --
Justice Jackson: But we're in revocation. We're in revocation, Ms. Hansford. We're talking about the revocation scenario.
Masha G. Hansford: Yes. So the -- so I'm giving you an example of where this might make a difference. Or at a --
Justice Barrett: Ms. --
Justice Kagan: Can I -- can I ask another question, Ms. Hansford, and I think it was something that was in part in Justice Jackson's questions. But, I mean, you're saying that this is impossible, it's unworkable, and that seems in tension with your own argument. In other words, if it's so impossible and unworkable to distinguish between the mandatory and the prohibited in the way that Petitioner wants courts to, it seems as though it would be just as impossible and unworkable to distinguish between the mandatory and permissive Official 1 in the way you want courts to do. So, either way, courts have to make a distinction. And for -- you know, it -- it -- it might be difficult in some circumstances, but if it's so impossible, it's so impossible for your purposes too.
Masha G. Hansford: So I -- I don't think that's correct, Justice Kagan, because I think there's a big difference between the affirmative and the negative. The negative rule that Petitioners are asking is: You may not consider seriousness of the offense. You may not consider promoting respect for the law. And that is the problem. In my example, when the judge is --
Justice Kagan: No, but in -- but you're saying you have to think about what you have to consider and just what -- what you may consider. So that suggests that a court is capable of distinguishing between the two. And once you've decided that the court is capable of distinguishing the two, then the court is equally capable of distinguishing between the mandatory and the prohibited.
Masha G. Hansford: I don't think the court Official 1 would ever be capable of distinguishing between seriousness of the offense in the (a)(2)(A) sense and in the (a)(1) sense. And I don't think a court is ever capable of distinguishing -- of truly disentangling promoting respect for the law from deterrence and incapacitation. I think the one place where that discretion that Congress gave here relative to the probation statute makes a difference is in considering whether something is a just punishment. I think that's the one place where they might come apart.
Chief Justice Roberts: Can I --
Justice Kagan: I mean, either way, the -- the -- it works the same for the two arguments, this question of the difficulty of disentangling these things, because you're requiring a court also to disentangle these things. But let me ask you another question, which is: When you say something is mandatory, what exactly do you mean by that? In other words, there are all these factors, and Congress says you shall consider Official 1 these factors. Now does that mean that the factors have to be reflected in the sentence or, instead, can the court say: Well, I'm going to reflect -- or the revocation, whatever it is, or can the court say: Well, this factor seems peculiarly relevant here, and I'm going to, you know, do something that reflects that factor, but this other factor seems completely irrelevant, so I'm going to toss that away? So what does "mandatory" mean in this context?
Masha G. Hansford: I think "mandatory" means that the court must think about it, but it does not need to give it a large amount of weight.
Justice Kagan: I mean, it can decide -- it can give it zero weight, right? I mean, it has to think about it, but it can say: For my purposes, this is irrelevant.
Masha G. Hansford: Yes, I think -- I think that's --
Justice Kagan: Yeah. So that's got to be the case, right? And once you're in that world, the difference between mandatory and permissive is vanishingly slim because, in both Official 1 cases, a court is doing the same thing, which is saying, like: I'm going to pick up the factor and look at it and decide whether it's completely irrelevant or whether it's relevant and how to take it into account. And once that's becomes vanishingly slim, your argument begins to seem sort of peculiar.
Masha G. Hansford: I -- I think the difference is fairly thin, especially because all the factors are going to be --
Justice Kagan: I think I said "vanishingly slim." (Laughter.)
Masha G. Hansford: But I -- but -- but I don't think it's nonexistent. And so, in the early termination of release example I was giving, the court might say: I am not going to think about how serious your initial -- so I -- here -- here is the difference. In one set of circumstances, the judge says: I am going -- I'm going to choose to think about whether this is a just punishment. And so you're asking for early termination, but because your offense was a serious offense and I think that the term of imprisonment you served Official 1 was kind of on the low end, I'm not going to terminate your sentence early. Or the court might say the opposite. They might say: You know, I'm a little bit on the fence on deterrence and rehabilitation, but I think the term of imprisonment you already served is on the high end, so I actually am going to terminate the sentence early. And so that's the just punishment piece of it that I think Congress left to be discretionary in the supervised release context but is required to be considered in the probation context. And I think the reason for that is that --
Justice Kagan: Thank you.
Justice Barrett: Ms. -- Ms. Hansford, let me ask you a question that you probably won't like, but it's just a hypothetical. If, hypothetically, the government loses, are there pitfalls that you would want us to take into account in writing an opinion in favor of the Petitioner?
Masha G. Hansford: Yes, absolutely. So I think -- I really think that the textual argument Petitioner is making is extremely Official 1 troubling and is really unclear what district courts should be doing under that rule. I really think that the way to capture this intuition, to the extent that you have Petitioner's intuition that retribution shouldn't be doing any additional work, is not to take Petitioner's argument that you may not consider seriousness of the offense, you may not consider respect for the law, you may not consider just punishment, but it would be to have a provision that is written in the way 3583(d) is written, that -- to the extent that the revocation involves no greater deprivation -- so a court may revoke to the extent that the revocation involves no greater deprivation of liberty than is reasonably necessary for the purposes set forth in Sections 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D). And I think that that formulation addresses some of the workability concerns because it is not saying you just can't consider the other factors. It just says you can't do that extra work. But I think the existence of that provision, the very neighboring provision that Official 1 courts set out for conditions -- for conditions of release shows that that is not what Congress was doing in the language here. Congress had --
Justice Barrett: Okay. But I just wanted to know, like -- how we should write it in a way, if you lose, that would satisfy the government that we weren't resolving open questions.
Masha G. Hansford: Yeah. I think the least bad approach would be -- would be to adopt that formulation in 3583(d). I don't think you can get there textually, but I do think that that's how you would avoid the -- the -- the workability issues. I still think that this would not be a helpful rule for courts. I think it would still devolve to labels and not substance.
Justice Barrett: I know. You didn't give your argument away.
Masha G. Hansford: But I -- I also want to note that the consideration of just punishment is not a factor that necessarily harms the defendant. It could also benefit the defendant. So, for example, at a revocation hearing, consider an offender who has a not very Official 1 serious initial offense but a very, very serious violation. The court might look at that violation and say: Boy, deterrence concerns are off the charts. Rehabilitation, you really need a lot of rehabilitation. Incapacitation, really important. And so I would impose -- I would impose a very lengthy term of re-imprisonment, but your initial offense is not that bad. And, of course, any sanction I impose at a revocation is supposed to be justified by reference to your initial offense. And because your initial offense is not that serious, I just don't think that's a just punishment. I don't think that's the right result. And I think Petitioner's argument would take that off the table. I think that's a reason that Congress did not write the statute in that 3583(d) --
Justice Barrett: Thank you.
Justice Gorsuch: Ms. --
Chief Justice Roberts: Your friend --
Justice Gorsuch: I'm sorry, Chief.
Chief Justice Roberts: Your friend Official 1 said, I think near the end of his argument, he said we can all agree that Congress was doing something. Are you part of that "all?" (Laughter.)
Masha G. Hansford: Absolutely, Mr. Chief Justice. I think Congress was doing something. It was giving the court that additional discretion to reflect its view that the term of supervision sometimes is really purely rehabilitative and sometimes you are just looking at does this offender need a GED or does he need some sort of housing support, and you're not necessarily thinking punitive thoughts when you're taking the range of actions. But I think, when you get to revocation, it becomes a lot harder to think of Congress's purpose as primarily rehabilitative because one thing that is crystal-clear from the statute is that Congress did not think imprisonment should be used to rehabilitate.
Chief Justice Roberts: Well --
Masha G. Hansford: That, of course, is 3582, as this Court recognized in Tapia. And so the idea that Congress was really trying to further the rehabilitative Official 1 purposes of the term of supervised release with re-imprisonment feels really strange.
Chief Justice Roberts: Well, I mean, the different provisions -- I mean, obviously, it's apparent there's a lot of synonyms that overlap, but (a) does kind of look backward, right? I mean, the -- the offense, the punishment. And (b), (c), and (d) are looking forward. What's deterrence, protecting the public, and all that. And it seems to me that in leaving (a) out, Congress meant to focus on going forward when you're talking about revoking.
Masha G. Hansford: So, Mr. Chief Justice, even if that is what Congress was thinking, I think Congress had the ability to act with a lighter hand by requiring the things it thought were most important or with a heavier hand by forbidding all others. And I think the text here plainly does the first, particularly when you contrast it to the various provisions throughout to do what the heavier-handed approach would do.
Chief Justice Roberts: Well, I -- I think plain -- "plainly" is -- is a real reach Official 1 in this situation. It is a significant step, I think, to just leave (a) off the table.
Masha G. Hansford: I -- I -- I agree that it's a significant step and that it gives courts discretion, but I do think that discretion has a lot more weight in contexts outside of revocation because of the nature of revocation. It is very strange -- even if you put limits into your opinion against us, it is still very strange to tell a court that is sending someone to prison that they cannot consider whether that term of imprisonment is just. And I think, to go back to the workability concerns I was discussing with Justice Sotomayor, you -- it's really the height of absurdity what you see in the courts that are trying to apply the rule on the other side. You see courts parsing things like, is a reference to rule of law suggesting respect for the law? Is a reference to whether this result is just suggesting just desserts or that this punishment is deserved? And I think that that's a really strange thing to be parsing. Defendants are making arguments -- there's a First Circuit case Official 1 we cite on page 37 of our brief where the court did what courts primarily do at a revocation hearing, which is complained about the number of violations and the disrespect for the court that those violations reflect, and the defendant argued that considering the pattern of violations, then flouting court-ordered supervision can't be considered because it's a form of promoting respect for the law. So I think you're either in an absurd situation where -- in a topsy-turvy world where you're looking at all -- where you're not considering kind of the core of the reasons for the revocation, or you are just looking for magic words. And a court that is actually thinking all these things and what the just result is in this case is forced to use particular words or issue certain disclaimers, as Justice Alito indicated --
Justice Kavanaugh: Can I --
Masha G. Hansford: -- to --
Justice Kavanaugh: -- can I ask a question to go back to Justice Thomas's question about workability? Because it's important for me what role workability plays here. Official 1 Is it -- my understanding, I think, is that workability comes into play when we think about what significance to give the negative implication canon in this particular case. But you tell me how you think workability comes in, or at least that's one key part of it because, negative implication canon, we often look to context to determine whether to draw it. The context here would include, I think, how workable this is. And, obviously, it's not completely unworkable, the other side's position, but your point is its -- it borders -- you used the word "absurd," not workable, magic words. Does that come in on negative implication?
Masha G. Hansford: I -- I think that's fair, Justice Kavanaugh, that you can think of it as part of the context. And I think you can also think of it as kind of a gut check as was this really what Congress was intending to do, or is the fact that it didn't use the much more direct formulations it used elsewhere really an indication that it was trying to accomplish something quite different and just give the Official 1 courts a little bit of discretion, but not tie courts' hands on anything because that, of course, is a really big step to tell a court that it can't think certain thoughts at sentencing.
Justice Kavanaugh: Well, yeah. They're probably going to think the thoughts anyway. (Laughter.)
Masha G. Hansford: Yes, exactly.
Justice Kavanaugh: The -- on the three things listed in (a)(2)(A), seriousness of the offense, respect for the law, and just punishment, on the first two, seriousness of the offense and respect for the law -- I think I'm asked your -- your friend on the other side -- those are going to be almost completely overlapping, I think, with other things listed. So -- but then the third one, just punishment, maybe not so much. And so how do I analyze the case if I think -- I look at (a)(2)(A) and think two are completely or largely overlapping, and the other one, you could draw some kind of line?
Masha G. Hansford: I think, if you think Official 1 that, Justice Kavanaugh, we absolutely win because Petitioner's rule, the negative implication Petitioners are considering is you may not consider the factors in 3553(a)(2)(A), so you may not consider any one of them. And if any one of them is impossible, I don't think that argument can hold up.
Justice Kagan: I -- I don't think that that's quite right, Ms. Hansford. I mean, think of this as like a Venn diagram. You know, you have two circles and they intersect and there's some overlap, but as long as you're within your circle, you're fine, whether it's the non-shaded area or the shaded area. But, when you're outside your circle, as you would be if you were starting to think about just punishment, then you're not fine.
Masha G. Hansford: I -- I appreciate that intuition, Justice Kagan, but I think that if a sentence says you may not consider A, B, or C, that means that you cannot consider any one of them. And I think that the way --
Justice Kagan: To the extent --
Masha G. Hansford: -- to capture --
Justice Kagan: -- that they Official 1 overlap --
Masha G. Hansford: Yeah.
Justice Kagan: -- to the extent that it's like one and the same thing, you can consider it because you can consider all the other factors and you're just doing the same thing. To the extent it's not the same thing, then you can't consider it. So, in the area of overlap, you're golden. It's in the area of non-overlap that you're not.
Masha G. Hansford: Justice Kagan, I think the exact way to capture that intuition if that's what Congress was trying to do is, of course, a 3583(d) formulation that to the extent that the factors reflect more of a deprivation of liberty than is reasonably necessary for the enumerated purposes, that "to the extent language" is critical, and that's what's missing here and what is in the nearby provision. And that's how I think Congress would do it if it was trying to do what you're suggesting. And it was trying to do what you're suggesting but only for the conditions of release. It wanted those not to be increased Official 1 based on retributive thoughts.
Justice Kagan: Thank you.
Masha G. Hansford: But it was not doing that for the term of imprisonment itself.
Justice Jackson: Ms. Hansford, can I just ask you when -- when 3582 -- or sorry, 3553(a)(2)(A) says to reflect the seriousness of the offense, and we've had some question about how you can revoke without doing that, what offense do you take that to be referring to in the revocation scenario? Is it the original offense, or is it the offense that the person is being brought to the court?
Masha G. Hansford: It's the original offense of conviction. I think the statute is consistent in referring to "offense" to mean the original offense of conviction.
Justice Jackson: So why -- why couldn't you base a revocation decision on what happened that is leading to revocation and not the seriousness of the initial offense? You sort of seem to suggest --
Masha G. Hansford: Yeah.
Justice Jackson: -- that there's no way you could revoke and send somebody back to Official 1 prison without considering what you're now saying is the original offense. And I don't --
Masha G. Hansford: Yeah.
Justice Jackson: -- understand that.
Masha G. Hansford: So -- so two points. First, I think, on Petitioner's view that this is an exclusive universe, the seriousness of the violation also couldn't be considered because it's now --
Justice Jackson: No, I understand. I'm talking about your view.
Masha G. Hansford: Yes. But --
Justice Jackson: You're -- you're saying that there's no way to take out the serious of the offense, and you're now saying the seriousness of the offense is the initial offense.
Masha G. Hansford: Yes. And --
Justice Jackson: But -- but you concede that supervised release is a totally different thing than the initial offense.
Masha G. Hansford: Yeah.
Justice Jackson: So why couldn't you revoke -- Official
Masha G. Hansford: So --
Justice Jackson: -- without looking at the initial offense?
Masha G. Hansford: -- two reasons you can't revoke without looking at the seriousness of the initial offense. 3553(a)(1) also refers to nature and circumstances of the offense, which is that same original offense of conviction. So the overlap is exactly the same. It's the offense in (a)(1) and in (a)(2)(A). And the second --
Justice Jackson: All right. So -- so nature and circumstances is the facts related to the original offense. Seriousness of the offense is an -- a -- a -- relative consideration. How serious is this relative to other kinds of offenses and other people and whatever? So, I mean, those are two different factors in this very statute. They're listed differently.
Masha G. Hansford: Sure. So I think the other reason that a court -- that Congress couldn't have meant for that to be excluded is that (e)(3) actually ties the maximum term of Official 1 re-imprisonment to the severity of the initial offense, which is another way it shows that a court must be allowed to consider it. But, in practice, just to flesh this out, why would a court think about the seriousness of the offense even beyond the requirement to do so, if a -- an -- it -- it might cast light on the nature of the violation. So consider an offender whose violation is carrying a weapon. If that offender's initial offense was a murder or assault on a domestic partner with a weapon, I think that a court would perceive that violation very differently than if the underlying offense was fraud. So the severity of the underlying offense can provide critical context in assessing the violation and in informing a court's decision about what to do about the violation.
Justice Gorsuch: Ms. Hansford --
Justice Kavanaugh: Can I --
Justice Gorsuch: -- I -- I -- I see almost complete overlap with all three. I mean, seriousness of offense, as you say, appears Official 1 through the first -- first one, nature and circumstances of the offense and the history of the offender basically. The second one, respect for the law, deterrence. Just punishment seems to me to capture all those things, right? Look at the -- look at the defendant -- look at his offense, look at the need for deterrence and incapacitation to protect the -- it's all the same thing. It's all the same thing. So -- but some courts are doing it. They follow this rule. And you -- you say that that's proved unworkable. And I -- I -- I -- I -- I wanted you to spin out how exactly it's proven unworkable, because judges are very good with words, and when you tell them they can't use certain words, that there are certain magic words, they will avoid those words. They will use synonyms for those words. So why -- why should we worry? All we're doing is -- is requiring judges to pull out a thesaurus.
Masha G. Hansford: If I may respond?
Chief Justice Roberts: Sure. Official
Masha G. Hansford: I think that you're getting no value by asking justices -- judges to pull out a thesaurus.
Justice Gorsuch: I understand. I understand. I understand that it's a hoop-jumping exercise.
Masha G. Hansford: Sure.
Justice Gorsuch: But some circuits have done it. Tell me how it's proven unworkable on the ground.
Masha G. Hansford: So I think that it hasn't had a huge practical effect on the ground so far. And we did oppose review in this case. But I think that part of the reason it hasn't had a huge practical effect is that courts have generally just found a way to affirm. And, frankly, a lot of these have been coming up in plain-error posture because most offenders don't think to make this objection at all. And I -- and other courts have imposed other atextual limits that Petitioner disclaims, like that it has to be the primary consideration, and so just referring to it is not enough, but you have to refer to it, I don't know, five times. And so I think there have Official 1 been limits. I think, as soon as this Court announces a different rule, every offender will be raising this. And, of course, there are a huge number of these revocation proceedings, and this will be coming up. There will be a huge hoop-jumping exercise that I don't think will benefit offenders or affect the substance, but there will be a lot of court of appeals work to parse the particular words that a district court used at a revocation hearing.
Chief Justice Roberts: Thank you, counsel. Justice Thomas? Justice Alito, anything further? Justice Sotomayor? Justice Kagan? Justice Gorsuch?
Justice Kavanaugh: Just to pick up on Justice Barrett's question and what Justice Gorsuch was just saying, you know, if you lose, I think telling district courts: Just avoid the word "punish" or "punishment" and you're good to go, and if it's not objected to, it's not plain error if you have used it, is probably what Official 1 you're looking for. But tell me -- tell me if -- tell me what else.
Masha G. Hansford: I mean, I -- I think, if the -- you know, if -- if we're losing, we would ask this Court to give as specific of instructions as possible for what words courts should avoid. I think the nature of a revocation hearing is often it's the court kind of instructing the offender on how to do better and it's a really particularly strange type of hearing to -- for a judge to have to prescript, as Justice Alito was indicating. And so I do think that whatever the magic words are, yes, courts will learn to avoid them. But I really think that will skew the process, particularly if it suggests that on the substance courts should not be considering what is --
Justice Kavanaugh: Well, I think the only magic word is "punish," right? The only reverse magic word, as you put it in your brief.
Masha G. Hansford: The --
Justice Kavanaugh: "Punish" or Official 1 "punishment."
Masha G. Hansford: And -- and I guess one other thing I would note about "punish" or "punishment" is there is some sense that retribution is a hallmark of punishment, but, of course, deterrence is another hallmark of punishment and -- and -- and another core feature of punishment. So it's a -- it's a little bit weird to have that be the wrong word --
Justice Kavanaugh: Okay.
Masha G. Hansford: -- because, when something is used for deterrence as opposed to compensatory purposes, we often think it's punitive, like punitive damages. So I'm -- I'm not really sure why "punish" --
Justice Kavanaugh: I think you're arguing again for why you should win, but that's -- that's good enough. Thanks.
Masha G. Hansford: Thank you.
Chief Justice Roberts: Justice Barrett? Justice Jackson? Thank you, counsel. Official 1 Rebuttal? REBUTTAL ARGUMENT OF CHRISTIAN J. GROSTIC ON BEHALF OF THE PETITIONER
Christian J. Grostic: Thank you, Mr. Chief Justice. And I -- I -- I want to respond to the -- the repeated questions about the hoop-jumping exercise idea and the -- and the magic words idea, is there anything really happening here. And I -- I'd start with what this Court has said in numerous cases -- in Granderson, in Roy Lee Johnson, in Gozlon-Peretz -- that supervised release was created for different purposes, both different purposes than parole that came before and different purposes than a prison sentence that it precedes. And sub -- subsection (c), 3583(c), is the codification. It's Congress stating those purposes. It's where I -- I believe all of the court's statements regarding that come from. And it's that the court shall consider (a)(1), (a)(2)(B), (a)(2)(C), and -- and down the line. In -- in Tapia, this Court observed Official 1 that that meant that retribution was off the table. The Senate report confirms what we see in the text, again, that supervised release "may not be imposed for purposes of punishment." And then, as we follow down through 3583, everything that Congress wrote follows that same beginning. In (d), courts can impose conditions but not for (a)(2)(A) purposes. My -- my -- my friend on the other side does note (a)(2) -- (d)'s statement to the extent that that actually introduces a list of three different things that the court has to satisfy. So I -- I'm not sure that the court can really read to the extent that is as directly related only to the greater deprivation of liberty for those purposes. But the important point here is that the conditions are unrelated to (a)(2)(A). They're only for the other purposes. And then, when we get to (e) and the options of terminating, modifying, or revoking, if an offender while on supervision now has -- their conduct has indicated some need for a change from what the court originally thought was appropriate, Congress gave courts tools to Official 1 do that but, again, for those same purposes and not the retributive purpose. That's the core of what Congress was excluding in the statute. It's what -- it Congress said it was doing in the Senate report. It's what this Court observed in Concepcion and Tapia. And we'd ask the Court to reverse the judgments below on that basis.
Chief Justice Roberts: Thank you, counsel. The case is submitted. (Whereupon, at 11:32 a.m., the case was submitted.)