Winters v. Ridley

¶1dissenting:

¶2I am in complete accord with the reasoning of Judge Green in Cunningham v. Williams, 711 P.Supp. 644 (D.D.C.1989), that the plain language and the purpose of the Good Time Credits Act of 1986, coupled with the rules of “lenity” and logic, compel the conclusion that every person then convicted and imprisoned in the District of Columbia who engaged in conforming conduct, was entitled to receive the benefits of that legislation (with one specifically noted exception).21 Indeed, I find much of the analysis employed by my colleague, Judge Schwelb, to add further support to, rather than to detract from, the result reached by Judge Green.

¶3Like both of my colleagues, Judge Schwelb and Judge Ferren, I recognize that, in discerning legislative intent, it is a hazardous process to rely upon the views of a subsequent legislature to identify the intent of an earlier one. I agree with Judge Ferren, therefore, that in the circumstances of this case, it would be judicially inappropriate for us to credit the 1989 Council declaration of the 1986 Council’s intent. We can no more determine the “subjective” intent of an earlier legislature than can a subsequent legislature. That is why Judge Green in Cunningham was correct in starting with the fundamental canon of the plain language of the GTC Act of 1986 and giving conclusive weight to that language.

¶4Moreover, because we are here dealing with legislation which affects the length of criminal sentences, I believe it is also (constitutionally speaking) hazardous to “borrow” (as Judge Ferren has done) from the “general and specific” canons of civil statutory construction to here make the Murder I statute uniquely paramount.22 The question is not whether there is a “counter-canon” of statutory construction that would prevent the application of Judge Fer-ren’s approach, but whether the approach can be lawfully applied to these penal provisions. Through the ex post facto prohibition of the Constitution, “the Framers sought to assure that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed.” Two critical elements identify an ex post facto law: it must be retrospective and it must disadvantage the offender affected by it. Id. at 580. The alteration of credits given as a matter of grace to prison inmates who abide by prison rules may fall within its prohibition.

¶5In my view all persons serving sentences in the District of Columbia on April 11, 1987, pursuant to the provisions of § 22-2404(b) are entitled to earn “good-time” credits for any conforming conduct during the two year period between April 11, 1987 and May 30, 1989, which could advance the time of their eligibility to apply for parole.

¶6I respectfully dissent.