| Opinion [ Ginsburg ] | Concurrence [ Scalia ] | Syllabus | Dissent [ Rehnquist ] | Concurrence [ Kennedy ] |
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SUPREME COURT OF THE UNITED STATES
No.
UNITED STATES, PETITIONER v. RALPH STUART GRANDERSON, Jr.
on writ of certiorari to the united states court of appeals for the eleventh circuit
[
Justice
Both under my analysis, and under Justice Kennedy's, there exists a problem of comparing the incomparable that ought to be acknowledged. Since Granderson's original sentence was 60 months' probation plus a $2,000 fine, I must, in order to concur in today's judgment, conclude, as I do, that the five extra months of prison (beyond the Guidelines' 6 month maximum imposable for the original offense) which Granderson hasserved are worth at least $667 (one third the original fine) and that 11 months in prison are the equivalent of 20 months' probation plus a $667 fine--because otherwise I would have to consider imposing some or all of the $5,000 maximum fine imposable for the original offense, see USSG § 5E1.2(c)(3), or indeed consider departing upward from the applicable Guidelines range, see 18 U.S.C. § 3553(b), towards the 5-year imprisonment that is the statutory maximum for the offense, see 18 U.S.C. § 1703(a). And Justice Kennedy, even if he takes only the probation into account for purposes of determining the "original sentence," must still conclude, it seems to me, that 11 months in prison is at least the equivalent of 20 months' probation--because otherwise he would have to consider imposing some or all of the available $5,000 fine or departing upward from the Guidelines.
It is no easy task to determine how many days' imprisonment equals how many dollars' fine equals how many months' probation. Comparing the incommensurate is always a tricky business. See, e. g., Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U.S. 888, 897 (1988) (Scalia, J., concurring in judgment). I frankly doubt that those who drafted and adopted this language intended to impose that task upon us; but I can neither pronounce the results reached by a straightforward reading of the statute utterly absurd nor discern any other self evident disposition for which they are an obviously mistaken replacement. Cf. Green v. Bock Laundry Machine Co., 490 U.S. 504, 527 (1989) (Scalia, J., concurring in judgment). It seems to me that the other interpretations proposed today suffer, in varying degrees, the double curse of producing neither textually faithful results nor plausibly intended ones. It is best, as usual, to apply the statute as written, and to let Congress make the needed repairs. That repairs areneeded is perhaps the only thing about this wretchedly drafted statute that we can all agree upon.
For these reasons, I concur in the judgment of the Court.
Notes
* The Court's reply to this is that since "[t]he term of probation . . . was imposed in lieu of a sentence of imprisonment, not in lieu of a fine," its revocation "implies replacing the sentence of probation with a sentence of imprisonment." Ante, at 15, n. 12. I do not know why an implication would inhere in the proviso which contradicts the body of § 3565(a)(2) to which the proviso is attached. The latter provides that the court may "revoke the sentence of probation and impose any other sentence that was available . . . at the time of the initial sentencing" (emphasis added). Presumably the Court would concede that "any other sentence" includes a fine--in which case its discernment of some implication that revoked probation may be replaced by only prison time must be wrong.
Justice Kennedy makes a similar defense. He refuses to consider the fine component because "[t]he proviso instructs the district court to `revoke the sentence of probation,' but says nothing about the fine imposed at the original sentencing," post, at 2. There is, however, clearly no requirement that only what has been revoked can be the baseline for measuring the requisite minimum--for even the unrevoked (because already served) portion of the probation period counts. Justice Kennedy's argument reduces, therefore, to the contention that for some unexplained reason the requisite minimum replacement for the revoked "probation component" of the original sentence can be measured only by that same component. This imperative is not to be found in the language of the statute; to the contrary, interchangeability of fines and probation is suggested by the body of § 3565(a)(2) quoted above. Here, it seems to me, Justice Kennedy simply abandons the text and adopts an intuited limitation remarkably similar to those for which he criticizes the Court and the dissent.