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RBG Joins Conservatives for Government Criminal Case Win (1)

June 3, 2019, 2:33 PMUpdated: June 3, 2019, 7:38 PM

Justice Ruth Bader Ginsburg joined conservative colleagues to hand the government a 5-4 win June 3 in a case on supervised release that could have the effect of keeping defendants locked up longer.

Ginsburg signed onto Justice Clarence Thomas’ majority opinion that was joined by Chief Justice John Roberts, Samuel Alito, and Brett Kavanaugh.

Justice Sonia Sotomayor dissented, joined by Stephen Breyer, Elena Kagan, and Neil Gorsuch, the latter of whom has teamed up with Sotomayor on some criminal justice issues previously.

The dissenters charged the majority with misreading the law and creating “needless uncertainty and unfairness.”

The atypical ideological vote breakdown “fits in what I expect will be a theme of the rest of the term” in some criminal cases, said Douglas A. Berman, a professor at Moritz College of Law at The Ohio State University.

He noted pending decisions that likewise portend interesting ideological groupings in cases involving sex offender registration, double jeopardy, and another supervised release case argued the same day as this one.

The dispute here arose in the case of Jason Mont. He was released from federal prison on a drug and gun sentence in March of 2012, when he began serving a five-year supervised release term that was slated to end on March 6, 2017.

But Mont “did not succeed on supervised release,” Thomas observed, as the defendant racked up failed drug tests and new state charges.

Mont was sentenced on new state charges on March 21, 2017—after his federal supervised release term was slated to expire. But in sentencing him to more prison time, the state judge credited the roughly 10 months for which Mont was locked up in the state system pending the disposition of those new charges.

After getting that new state sentence, Mont argued that the federal court didn’t have jurisdiction to revoke his supervised release, because it was more than five years after his five-year term began. The supervised release clock kept running while he was held pretrial on the new state charges, he argued.

But the government argued that the clock stopped—it was “tolled,” in legal parlance—during the pretrial incarceration time for which Mont was later credited on his state sentence.

The federal judge sided with the government, revoking Mont’s supervised release and ordering him to serve additional time consecutive to the new state sentence, which he’s currently serving.

His appeal called on the justices to apply a federal law, 18 U.S.C. §3624(e), which says supervised release “does not run during any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime unless the imprisonment is for a period of less than 30 consecutive days.”

Affirming the federal appeals court ruling that condoned Mont’s release revocation, Thomas wrote for the majority that the correct reading of that language from 3624(e)—"is imprisoned in connection with a conviction"—includes pretrial detention credited toward another sentence for a new conviction.

That’s the case, Thomas wrote, even if courts must make tolling calculations after learning whether the time will be credited, as in Mont’s case.

Uncertainty, Unfairness to Follow: Dissent

But the majority’s approach is “at odds with the statute’s language” and congressional intent, Sotomayor wrote for herself, Breyer, Kagan, and Gorsuch.

In “normal usage,” she wrote, no one would say that a person “is imprisoned in connection with a conviction” before any conviction has occurred. That present tense phrasing, she wrote, “would convey something that is not yet—and, indeed, may never be—true: that the detention has the requisite connection to a conviction.”

Pretrial detainees can be acquitted or have their cases dismissed, the justice noted.

And though supervised release tolling “may seem arcane, these calculations can have weighty consequences,” she observed, noting that, in Mont’s case, it amounts to an extra 3 1/2 years of federal prison after he serves his state sentence.

The majority’s approach “creates a serious risk of unfairness,” Sotomayor wrote, because people in pretrial detention “will have no notice of whether they are bound by the terms of supervised release.”

Mont’s lawyer, Vanessa Malone of the federal public defender in Akron, Ohio, said she hopes the case “will provide inspiration for district courts to proceed expeditiously with supervised release violations as opposed to using the wait and see approach.” The Justice Department declined comment.

The case is Mont v. United States, U.S., 17-8995, affirmed 6/3/19.

(Adds snapshot, opinion detail, and comments from Berman, Malone.)

To contact the reporter on this story: Jordan S. Rubin in Washington at

To contact the editors responsible for this story: John Crawley at; Jessie Kokrda Kamens at