NOTICE: This opinion is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-4813
Appellant, ) Trial Court No. 3AN-S91-10494CI
)
v. ) O P I N I O N
)
WILLIAM McCALLION, )
)
Appellee. ) [No. 1349 - June 3, 1994]
______________________________)
)
STATE OF ALASKA, )
) Court of Appeals No. A-5068
Appellant, ) Trial Court No. 3AN-S93-1580CI
)
v. )
)
ANTHONY R. MOORE, )
)
Appellee. )
______________________________)
)
STATE OF ALASKA, )
) Court of Appeals Nos. A-5123/24
Appellant, ) Trial Court Nos. 3AN-S91-10494CI
) and 3AN-S93-9128CI
v. )
)
ALFRED H. KOMOK, )
)
Appellee. )
______________________________)
)
STATE OF ALASKA, )
) Court of Appeals No. A-5215
Appellant, ) Trial Court No. 4BE-S93-151CI
)
v. )
)
ANTHONY SHELTON, )
)
Appellee. )
______________________________)
Appeal in File No. A-4813 from the Superior
Court, Third Judicial District, Anchorage,
Rene J. Gonzalez, Judge. Appeal in File No.
A-5068 from the Superior Court, Third
Judicial District, Anchorage, Karen L. Hunt,
Judge. Appeal in File Nos. A-5123/24 from
the Superior Court, Third Judicial District,
Anchorage, Mark C. Rowland, Judge. Appeal in
File No. A-5215 from the Superior Court,
Fourth Judicial District, Bethel, Dale O.
Curda, Judge.
Appearances: John K. Bodick, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Charles E. Cole, Attorney General, Juneau,
for Appellant. Suzanne Weller, Assistant
Public Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellees McCallion,
Moore, and Komok. Douglas Moody, Assistant
Public Defender, Bethel, and John B. Salemi,
Public Defender, Anchorage, for Appellee
Shelton.
Before: Coats and Mannheimer, Judges, and
Wolverton, District Court Judge.* [Bryner,
Chief Judge, not participating.]
WOLVERTON, Judge.
The issue presented by these cases consolidated on
appeal is whether the various trial courts properly interpreted
former AS 33.20.010, the statute enacted in 1960 governing "good-
time credit" for sentence reductions due to good behavior while
in custody. The trial courts uniformly interpreted this statute
as requiring computation of good-time credit according to the
"block" method used by the Alaska Department of Corrections (DOC)
from 1960 through 1971, rather than by the "accrual" method that
the DOC administratively adopted for use from 1971 to 1980. We
find that the trial courts did not err in determining that the
block method of computation was required, and we therefore
affirm.
All of the appellees had prison terms that were
affected by the DOC decision to alter the method of good-time-
credit computation. There is no dispute that, under the block
method used from 1960 through 1971, prisoners could receive
reductions of up to one-third of their sentences, while under the
accrual method administratively adopted for use from 1971 to
1980, prisoners could receive reductions only of up to one-fourth
of their sentences. There is also no dispute as to the
calculations of each prisoner's sentence under the two methods
that the DOC had used to calculate good-time credit.1 Thus, the
only issue is whether the Alaska legislature intended to adopt
the block computation method when it enacted AS 33.20.010 in
1960. We find that it did.
BACKGROUND
The history of good-time credit in the Federal Bureau
of Prisons (FBP) and the Alaska DOC is straightforward and
essentially not in dispute.
Generally, prisoners are credited with a reduction in
actual time served in custody for observing DOC rules. This
reduction, which serves as an incentive for a prisoner to be on
good behavior while incarcerated, is referred to as "good-time
credit." Until 1980 there were two types of good-time credit.
Under former AS 33.20.020, ch. 107, 2, SLA 1960, repealed by
ch. 166, 21, SLA 1978 (effective January 1, 1980), prisoners
had the opportunity to earn meritorious good-time credit for work
service involving correctional institution duties or projects.2
The other type of good-time credit is for general good
behavior and adherence to institutional rules and regulations.
The correct computation of this credit, applicable to prisoners
under former AS 33.20.010, ch. 107, 1, SLA 1960, is the subject
of this appeal.
From 1902 until 1948, during Alaska's territorial days
when all prisoners were under federal jurisdiction, the FBP
computed good-time credit using a "block" method. Act of June
21, 1902, ch. 1140, 1, 32 Stat. 397.3 Under the block method
of good-time computation, the total amount of good time set forth
by statute was computed according to a prisoner's total sentence
and credited at the outset of the sentence. Thus, for example, a
prisoner sentenced to a total term of incarceration of twelve
months was entitled to five days of good-time credit per month.
This total amount -- sixty days -- was given to the prisoner in a
block at the beginning of the sentence, leaving ten months of
actual time to serve in custody. However, the sixty days of good-
time credit was subject to partial or total forfeiture for bad
behavior at any time before the prisoner's term of imprisonment
had been completed.
In 1948, Congress amended the good-time-credit law by
adopting an "accrual" method of calculation. The amended statute
specified that good-time credit was "to be credited as earned and
computed monthly." Act of June 25, 1948, ch. 645, 1, 62 Stat.
853.4 Under this new accrual method, credit for good behavior
was awarded periodically throughout a prisoner's term of
incarceration. For example, the prisoner sentenced to a twelve-
month term of incarceration would now accrue five days of good-
time credit after each month served. Under this new method of
calculation, the prisoner would have earned only fifty days of
good-time credit at the end of ten months in prison (the time at
which the prisoner would have been released under the prior
method of computation). Thus, the prisoner would have to serve
longer in prison to qualify for release under the new method of
computation.
After Congress adopted this accrual method of good-time-
credit calculation in 1948, the FBP was confronted with the fact
that when good time was "credited as earned and computed monthly"
as the new law required, prisoners earned less good-time credit
and were required to serve more time in custody than under the
former method of computation. Because the FBP believed that
Congress had not intended to reduce prisoners' total good-time
credit, the FBP administratively adopted a hybrid system of good-
time-credit computation. The FBP multiplied the number of months
in a prisoner's sentence by the number of days per month of good-
time credit listed in 18 U.S.C. 4161 -- essentially computing
the total amount of good-time credit in the same manner as under
the former block method. Then, to award this same total good-
time credit under the new accrual system, the FBP simply
increased the monthly rate of accrual above the rate set forth in
the statute. Under our example of the prisoner sentenced to
twelve months in prison, the FBP would credit the prisoner with
an accrual of six days per month rather than five days per month
as authorized by statute, so that the prisoner would still be
released at the end of ten months.
In Hunter v. Facchine, 195 F.2d 1007 (10th Cir. 1952),
the Tenth Circuit Court of Appeals ruled that the FBP hybrid
method of computing good-time credit violated the statute:
Obviously [prisoners] will be required to
serve longer, if credited with only [5] days
per month, rather than [6] days per month,
. . . but that problem was for Congress and
was resolved by it in the adoption of the new
section. We think there is no ambiguity in
the statute and that its clear language
requires that [the good time credit specified
in the statute] be computed monthly, as the
months go by, and not [at the increased
rate], as provided by the Bureau's rules.
Id. at 1009.
Alerted by the Hunter decision that it had
inadvertently reduced the potential amount of good-time credit,
on September 14, 1959, Congress returned to its former block
method of computation by deleting the language "to be credited as
earned and computed monthly" from the 1948 statute. P.L. 86-259,
73 Stat. 546 (1959).5
On February 9, 1960, less than five months after
Congress had amended 18 U.S.C. 4161 to return federal good-time
computation to the former block method, a good-time-credit bill
that was virtually identical to the newly-amended 18 U.S.C.
4161 was introduced in the Alaska House of Representatives.
(H.B. 320, 1st Leg., 2d. Sess. 1960). This bill was adopted into
law essentially unchanged as former AS 33.20.010.6
The legislative intent at the time former AS 33.20.010
was enacted was explicit and clear: "[t]he principle of good
time for prisoners should be adopted into Alaska law as it is
found in present federal laws dealing with Alaska." 1960 House
Journal 194. Notably, the Alaska law omitted the accrual
language "to be credited as earned and computed monthly" that
Congress had deleted from 18 U.S.C. 4161 in September 1959.
Before statehood and the enactment of former AS 33.20.-
010, Alaska prisoners were incarcerated in federal correctional
facilities both inside and outside of Alaska, and they were
subject to federal good-time-credit laws. Although most of these
federal facilities within Alaska were ultimately leased to the
state, at the time of statehood, Alaska immediately negotiated
contracts for operation of the correctional facilities with the
various municipalities where the institutions were located. By
the late 1960s, Alaska had either built new facilities or taken
over administration of the jails in most of the major Alaska
communities. Many of the same correctional administrators who
had been employed by the federal government, and later by the
municipalities, were then employed by the state to continue
operating the same prisons.
From the time 18 U.S.C. 4161 was amended in 1959
until 1971, Alaska prisoners were awarded good-time credit under
the block method, first under the federal law and thereafter
under AS 33.20.010. In 1971, however, the DOC, without any
change in AS 33.20.010 or any new statutory authority,
administratively adopted the accrual method of computation that
the federal government had explicitly rejected by the 1959
amendment to 18 U.S.C. 4161. Under the accrual method chosen
by DOC, the ultimate good-time sentence deduction was reduced
from one-third to one-fourth of the total sentence of
incarceration. In order to avoid ex post facto effect, the DOC
applied the new accrual method of accounting only to post-July 1,
1971, prisoners.
It was not until 1978 that the Alaska legislature
explicitly changed the law by adopting a simplified accrual
method of good-time computation that allowed for "a deduction
from the term of imprisonment of one day for every three days of
good conduct served." Former AS 33.20.010, ch. 166, 17, SLA
1978 (effective January 1, 1980). This new legislation
explicitly mandated a one-fourth reduction in the sentenced
period of incarceration.
In 1986, the legislature again amended AS 33.20.010.
Ch. 11, 1, SLA 1986. The statute in its current form provides
that a prisoner will receive "a deduction of one-third of the
term of imprisonment . . . if the prisoner follows the rules of
the correctional facility." AS 33.20.010(a).
STANDARD OF REVIEW
On appeal the state argues that the trial courts
improperly applied the substitution of judgment standard of
review, instead of limiting their review of former AS 33.20.010
to whether the DOC's 1971 interpretation of that statute had a
reasonable basis in law and fact. In Tesoro Alaska Petroleum Co.
v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987), the
Alaska Supreme Court set forth the two standards of review as
follows:
The rational basis test is used where
the questions at issue implicate special
agency expertise or the determination of
fundamental policies within the scope of the
agency's statutory function. It is generally
applied in two circumstances:
First, . . . where the agency is
making law by creating standards to
be used in evaluating the case
before it and future cases.
Second, . . . when a case requires
resolution of policy questions
which lie within the agency's area
of expertise and are inseparable
from the facts underlying the
agency's decision.
When applying the rational basis test, we
merely seek to determine whether the agency's
decision is supported by the facts and has a
reasonable basis in law, even if we may not
agree with the agency's ultimate determina-
tion.
The substitution of judgment standard is
applied where the questions of law presented
do not involve agency expertise or where the
agency's specialized knowledge and experience
would not be particularly probative as to the
meaning of the statute. As we recently
observed in Earth Resources:
The standard is appropriate where
the knowledge and experience of the
agency is of little guidance to the
court or where the case concerns
"statutory interpretation or other
analysis of legal relationships
about which the courts have
specialized knowledge and experi-
ence."
Application of this standard permits a
reviewing court to substitute its own
judgment for that of the agency even if the
agency's decision had a reasonable basis in
law.
(Citations omitted) (footnote omitted).
In the cases consolidated on appeal, the trial courts
were correct in applying the substitution of judgment standard of
review. The policy considerations at issue in selecting a method
of good-time-credit computation had been explicitly considered by
the federal and state legislatures that have enacted and amended
the good-time statutory schemes since 1902. Here, as in Hunter
v. Facchine, 195 F.2d 1007 (10th Cir. 1952), the question is one
of statutory interpretation, and the knowledge, experience, and
expertise of the DOC does not offer guidance to the reviewing
court in resolving the issue of whether the 1960 Alaska
legislature intended to require a block or an accrual method of
good-time-credit computation.
As the question is one of statutory interpretation,
this court determines it de novo, without deference to the trial
court or to the administrative agency decisions. Michael v.
State, 767 P.2d 193, 197 (Alaska App. 1988), rev'd on other
grounds, 805 P.2d 371 (Alaska 1991). In so doing, we adopt the
rules of law that are most persuasive in light of precedent,
policy, and reason. Zsupnik v. State, 789 P.2d 357, 359 (Alaska
1990); Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
DISCUSSION
While the policy reasons for the 1971 DOC decision to
administratively adopt an accrual method may have been sound and
even laudatory, the state's arguments on the applicable standard
of review and related issues are without merit. Citing I.N.S. v.
Cardoza-Fonseca, 480 U.S. 421 (1987), as authority, the state
argues that a "`gap' exists regarding the interpretation of
former AS 33.20.010 because the legislature did not explicitly
state how good time was to be computed under the ambiguous
federal law." Alternatively, however, the state claims that
"[t]he plain language of [former AS 33.20.010] clearly provides
for the accrual basis," and that "the plain language of the
statute mandated that good time be awarded as it was earned."7
Both arguments fail in their con-clusions regarding the meaning
of the statute.
Read alone, without reference to any legislative
history or historical application, the language of former AS
33.20.010 (1960) does not explicitly or implicitly indicate
whether a block or an accrual method was to be used for good-time-
credit computation. Thus, although the plain meaning of the
statute may be considered, Gibson v. State, 719 P.2d 687, 690
(Alaska App. 1986), it is not particularly helpful in attempting
to interpret the good-time statute in question here.
That being the case, we must look to a variety of
resources for assistance, including federal interpretations of
similar federal statutes. Morton v. Hammond, 604 P.2d 1, 2
(Alaska 1979); Drickersen v. Drickersen, 546 P.2d 162, 167 n.9
(Alaska 1976). Also, "[c]ontinuous, contemporaneous and
practical inter-pretation by executive officers and the courts is
a valuable aid in determining meaning . . . ." Public Defender
Agency v. Superior Court, 534 P.2d 947, 952 (Alaska 1975).
Finally, and most impor-tantly in the cases before us, the
legislative history of the statute provides useful assistance in
interpretation. City of Homer v. Gangl, 650 P.2d 396, 400 n.4
(Alaska 1982). Consideration of these resources compels the
conclusion that when the Alaska legislature enacted former AS
33.20.010 (1960), it intended to require the block method of good-
time-credit computation as used by the FBP at the time.
The state does not argue, and there is nothing to
suggest, that there has ever been any question regarding
interpretation of any of the federal good-time statutes enacted
and amended since 1902. While the amount of good-time credit to
be given has been questioned, as in Hunter, there is no authority
to suggest that the applicable method of good-time-credit
computation, block or accrual, has ever been raised as an issue.
When block language has been used, a block method has been
employed. When legislatures have added accrual language, such as
"earned and credited monthly," there has apparently never been
any question that an accrual method was to be applied.
In arguing that the continuous, contemporaneous, and
practical interpretation by executive officers and the courts
should be used as an aid in statutory interpretation, the state
starts the clock running in 1971 when the DOC, without any change
in statutory authorization, chose to adopt an accrual method. In
reality, however, the history of continuous, contemporaneous, and
practical interpretation of applicable good-time statutes
commences with the 1902 federal statute, whose subsequent history
is inextricably intertwined with the history of Alaska's good-
time statutes.
As the state pointed out in some detail, prior to
statehood, Alaska prisoners, prisons, and prison officials
operated under federal law and FBP regulations. At statehood,
when the Alaska legislature adopted former AS 33.20.010 (1960),
which was very similar to former 18 U.S.C. 4161 (1959), these
very same prisoners, prisons, and prison administrators continued
in operation under Alaska law. The continuity from the federal
system to the state system was virtually seamless, and therefore
1902, and not 1971, must serve as the starting date for aid in
statutory interpretation. Again, however, the state makes no
argument whatsoever that federal administrators or courts ever
questioned whether the federal good-time statutes applicable at
any given time required use of a block or an accrual method of
good-time credit.
This leads directly to the legislative history of the
Alaska good-time-credit law, which is the most conclusive
resource in statutory interpretation of former AS 33.20.010
(1960). At the time of statehood, Alaska adopted a statute that
was virtually identical to the federal good-time-credit statute.
There is no question that the federal statute employed a block
method to award good-time-credit reductions of up to one-third of
the total sentence. At that time the Alaska legislature was
clear in stating its intent that "[t]he principle of good time
for prisoners should be adopted into Alaska law as it is found in
present federal laws dealing with Alaska." 1960 House Journal
194.
After having pointed out that Alaska prisoners, FBP
prisons, and FBP administrators were transferred from the federal
system to the state system, the state attempts to argue that
"[g]iven the relative isolation of Alaska and the lack of sophis-
tication of available avenues of communication in 1960, it is
unlikely that the Alaska legislature was even aware that the new
federal statute was intended to implement a block system of good
time computation." Beyond the fact that there is no authority
for this proposition, it does not logically follow from the
historical facts set forth by the state. Thus, to the extent
that this assumption is intended for use by the state as a
linchpin for its argument that the legislature was not aware of
the system of good-time credit it was adopting in 1960, it serves
as no linchpin at all. The trial courts were correct in
concluding that the 1960 Alaska legislature intended to follow
federal good-time law and implement a block method of good-time
computation.
AFFIRMED.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. Additionally, there has been no dispute that the DOC
lacks authority to promulgate a regulation that contravenes the
authorizing statute.
2. Appellee McCallion, who was originally sentenced in
1974 and 1976, claimed below that he was entitled to credit for
meritorious work service. Although the state opposed McCallion's
claim at the trial level, the state has not appealed the trial
court's finding that McCallion was eligible for awards of
meritorious good-time credit under former AS 33.20.020 for the
entire period of his sentence.
3. The substance of the 1902 act is embodied in 18 U.S.C.
4161, Act of Sept. 14, 1959, P.L. 86-259, 73 Stat. 546:
4161. Computation generally
Each prisoner convicted of an offense against
the United States and confined in a penal or
correctional institution for a definite term
other than for life, whose record of conduct
shows that he has faithfully observed all the
rules and has not been subjected to
punishment, shall be entitled to a deduction
from the term of his sentence beginning with
the day on which the sentence commences to
run, as follows:
Five days for each month, if the sentence is
not less than six months and not more than
one year.
Six days for each month, if the sentence is
more than one year and less than three years.
Seven days for each month, if the sentence is
not less than three years and less than five
years.
Eight days for each month, if the sentence is
not less than five years and less than ten
years.
Ten days for each month, if the sentence is
ten years or more.
When two or more consecutive sentences are to
be served, the aggregate of the several
sentences shall be the basis upon which the
deduction shall be computed.
(Repealed 1986).
4. In 1948, the pertinent portion of 18 U.S.C. 4161 read
as follows:
Each prisoner convicted of an offense
against the United States and confined in a
penal or correctional institution for a defi-
nite term other than for life, whose record
of conduct shows that he has faithfully
observed all the rules and has not been
subjected to punishment, shall be entitled to
a deduction from the term of his sentence
beginning with the day on which the sentence
commences to run, to be credited as earned
and computed monthly[.]
5. Congress explained its intent as follows:
The Attorney General points out further
that in Hunter v. Facchine, the new language
was interpreted as requiring good-time to be
computed on the basis of actual time served
rather than on the basis of the term of the
sentence as imposed by the court. The effect
of this interpretation is to require well-
behaved prisoners to serve longer periods of
confinement than they would under the method
of computation which had been used through
half a century.
The proposed legislation, by deleting
the words "to be credited as earned and
computed monthly," is designed to provide for
the return to the method of computing good
conduct time which was followed between 1902
and 1948.
H.R. No. 935, 86th Cong., 1st Sess. reprinted in 1959 U.S.
C.C.A.N. 2518, 2519 (citation omitted).
6. This 1960 version of AS 33.20.010 provided:
Computation generally. (a) Each prisoner
convicted of an offense against the state and
confined in a penal or correctional institu-
tion for a definite term other than for life,
whose record of conduct shows that he has
faithfully observed all the rules and has not
been subject to punishment, is entitled to a
deduction from the term of his sentence
beginning with the day on which the sentence
starts to run, as follows:
(1) five days for each month, if
the sentence is not less than six months
and not more than one year;
(2) six days for each month, if
the sentence is more than one year and
less than three years;
(3) seven days for each month, if
the sentence is not less than three
years and less than five years;
(4) eight days for each month, if
the sentence is not less than five years
and less than ten years;
(5) ten days for each month, if
the sentence is ten years or more.
(b) When two or more consecutive
sentences are served, the basis upon
which the deduction is computed is the
aggregate of the several sentences.
Ch. 107, 1, SLA 1960.
7. Even if the plain-meaning rule were applicable, the
state has, to some degree, glossed over the fact that strict
adherence to the plain-meaning rule has been expressly and
repeatedly rejected in Alaska. City of Homer v. Gangl, 650 P.2d
396, 400 n.4 (Alaska 1982); State v. Alex, 646 P.2d 203, 208 n.4
(Alaska 1982); State v. City of Haines, 627 P.2d 1047, 1049 n.6
(Alaska 1981).
