Section 406 of the Comprehensive Drug Abuse Prevention and
Control Act of 1970 (Act) provides that
"[a]ny person who attempts or conspires to commit any offense
defined in this title is punishable by imprisonment or fine or both
which may not exceed the maximum punishment prescribed for the
offense, the commission of which was the object of the attempt or
conspiracy"
(the "target offense"). Petitioner and others were convicted of
violating § 406 by conspiring to violate § 401(a)(1) of
the Act by knowingly manufacturing, distributing, and possessing a
controlled substance. In accordance with the provisions of §
401(b)(1)(B) prescribing penalties for violations of §
401(a)(1), petitioner was sentenced to a term of imprisonment, a
fine, and a 5-year special parole term to be served upon completion
of the term of imprisonment. The Court of Appeals affirmed
petitioner's conviction, and thereafter he filed an action under 28
U.S.C. § 2255 to vacate his sentence, claiming that the
sentence was unlawful because § 406 does not authorize the
imposition of a special parole term. The District Court held that
petitioner had been properly sentenced, and the Court of Appeals
affirmed.
Held: Section 406 of the Act does not authorize the
imposition of a special parole term even though that sanction is
included within the penalty provision of the target offense. Pp.
447 U. S.
387-401.
(a) A "plain meaning" interpretation of the term "imprisonment"
in § 406 does not support the position that the term means a
term of incarceration plus special parole made applicable by the
target offense's penalty provisions. Moreover, the structure of the
Act read as a whole supports the conclusion that § 406 defines
the types of punishment authorized for conspirators --
imprisonment, fine, or both -- and sets maximum limits on those
sanctions through reference to the penalty provisions of the target
offense, but does not incorporate by reference any provisions for
special parole. Pp.
447 U. S.
388-390.
(b) Nor does the Act's legislative history demonstrate that
Congress intended that the penalties authorized for substantive
offenses, and those for conspiracies to commit them, were to be
identical, thus authorizing
Page 447 U. S. 382
special parole terms for conspiracy convictions. Instead, the
history supports the view that § 406 authorizes two types of
sanctions -- fines and imprisonment -- and fixes the maximum amount
of each that may be imposed by reference to the target offense's
penalty provisions. Pp.
447 U. S.
391-398.
(c) A reading of § 406 to include the special parole
provisions of target offenses cannot be supported on the ground
that Congress' principal objective in enacting the Act's penalty
provisions -- to deter professional criminals from engaging in drug
trafficking for profit -- renders it unreasonable to ascribe to
Congress the intent to authorize special parole for isolated
substantive offenses while withholding this sentencing tool for
conspiracies. A comparison of those drug offenses for which
Congress clearly authorized special parole terms with those for
which it clearly did not does not reveal a coherent pattern based
on the asserted justification for escalated sanctions. Moreover,
since § 406 deals with both conspiracies and attempts, and
prescribes an identical range of punishment for both, it is not
surprising that Congress would provide for less stringent sanctions
to be imposed for violations of § 406 than for a completed
substantive offense. Pp.
447 U. S.
398-399.
600 F.2d 407, reversed and remanded.
BLACKMUN, J., delivered the opinion of the Court, in which
BURGER, C.J., and BRENNAN, STEWART, MARSHALL, and POWELL, JJ.,
joined. BURGER, C.J., filed a concurring opinion,
post, p.
447 U. S. 401.
STEVENS, J., filed a dissenting opinion, in which WHITE and
REHNQUIST, JJ., joined,
post, p.
447 U. S.
402.
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
The issue presented in this case is whether § 406 of the
Comprehensive Drug Abuse Prevention and Control Act of
Page 447 U. S. 383
1970 (Act); 84 Stat. 1265, 21 U.S.C. § 846, [
Footnote 1] authorizes a sentencing court to
impose a term of special parole upon a defendant who is convicted
of conspiracy to manufacture or distribute a controlled
substance.
I
Section 406 provides:
"Any person who attempts or conspires to commit any offense
defined in this title is punishable by imprisonment or fine or both
which may not exceed the maximum punishment prescribed for the
offense, the commission of which was the object of the attempt or
conspiracy."
The object of the conspiracy at issue in this case was the
commission of the substantive offense defined in § 401(a) of
the Act, 21 U.S.C. § 841(a). That subsection reads:
"Except as authorized by this title, it shall be unlawful for
any person knowingly or intentionally -- "
"(1) to manufacture, distribute, or dispense, or possess with
intent to manufacture, distribute, or dispense, a controlled
substance; or"
"(2) to create, distribute, or dispense, or possess with intent
to distribute or dispense, a counterfeit substance."
The penalties for violations of § 401(a) are set forth in
§ 401(b). That subsection authorizes the imposition of terms
of imprisonment, fines, and, in some instances, mandatory minimum
terms of special parole. The range of permissible punishments
varies depending on the nature of the controlled substance
involved, and on whether the defendant has been convicted
previously of a drug offense. The penalty provision at issue is
§ 401(b)(1)(b). [
Footnote
2] It states:
"Except as otherwise provided in section 405 [which
Page 447 U. S. 384
deals with distribution to minors], any person who violates
subsection(a) of this section shall be sentenced as follows: "
"
* * * * "
"In the case of a controlled substance in schedule I or II which
is not a narcotic drug or in the case of any controlled substance
in schedule III, such person shall be sentenced to a term of
imprisonment of not more than 5 years, a fine or not more than
$15,000, or both. If any person commits such a violation after one
or more prior convictions of him for an offense punishable under
this paragraph, or for a felony under any other provision of this
title or title III or other law of the United States relating to
narcotic drugs, marihuana, or depressant or stimulant substances,
have become final, such person shall be sentenced to a term of
imprisonment of not more than 10 years, a fine of not more than
$30,000, or both. Any sentence imposing a term of imprisonment
under this paragraph shall, in the absence of such a prior
conviction, impose a special parole term of at least 2 years in
addition to such term of imprisonment and shall, if there was such
a prior conviction, impose a special parole term of at least 4
years in addition to such term of imprisonment."
Section 401(c) describes the operation of the special parole
term provisions in greater detail. It states:
"A special parole term imposed under this section or section 405
may be revoked if its terms and conditions are violated. In such
circumstances the original term of imprisonment shall be increased
by the period of the special parole term and the resulting new term
of imprisonment shall not be diminished by the time which was spent
on special parole. A person whose special parole
Page 447 U. S. 385
term has been revoked may be required to serve all or part of
the remainder of the new term of imprisonment. A special parole
term provided for in this section or section 405 shall be in
addition to, and not in lieu of, any other parole provided for by
law."
The narrow, but important, question presented in this case is
whether § 406, which states the penalty for conspiracy as
"imprisonment or fine or both," but limits maximum punishment by
reference to the penalty provisions of the substantive target
offense, authorizes the imposition of a special parole term where
that sanction is included within the penalty provisions of the
target offense.
II
In an indictment filed in December, 1976, with the United States
District Court for the Eastern District of New York, petitioner
Alphonse Bifulco and others were charged with a single count of
conspiring to violate § 401(a)(1) by knowingly and
intentionally manufacturing, distributing, and possessing
substantial quantities of phencyclidine, a schedule III controlled
substance. This conspiracy was charged as a. violation of §
406. A jury found petitioner and several codefendants guilty of the
offense charged, and petitioner was sentenced to a 4-year term of
imprisonment, a fine of $1,000, and a 5-year special parole term.
[
Footnote 3] The United States
Court of Appeals for the Second Circuit subsequently affirmed
petitioner's conviction in an unpublished order.
In January, 1979, petitioner, pursuant to 28 U.S.C. § 2255,
filed
pro se a motion to vacate his sentence. He claimed
that
Page 447 U. S. 386
the sentence was unlawful because § 406 does not authorize
the imposition of a special parole term to be served upon
completion of a term of imprisonment. The District Court held that
petitioner had been properly sentenced, and dismissed his
complaint. App. 7.
On appeal, the Second Circuit affirmed. 600 F.2d 407 (1979). In
a per curiam opinion, that court followed two other Courts of
Appeals that had held that § 406 authorizes the imposition of
a special parole term.
See United States v. Burman, 584
F.2d 1354, 1356-1358 (CA4 1978),
cert. denied, 439 U.S.
1118 (1979), and
United States v. Jacobson, 578 F.2d 863,
867-868 (CA10),
cert. denied, 439 U.S. 932 (1978). It also
relied on the decision in
United States v. Dankert, 507
F.2d 190 (CA5 1975), which reached a similar result with respect to
the closely analogous sentencing provisions of § 1013 of the
Act, 21 U.S.C. § 963 (proscribing any conspiracy to import a
controlled substance).
Shortly after the Second Circuit's decision in this case, the
United States Court of Appeals for the Third Circuit reached the
opposite conclusion on the issue and held that a special parole
term may not be imposed under § 406.
United States v.
Mearns, 599 F.2d 1296 (1979),
aff'g 461 F.
Supp. 641 (Del.1978),
cert. pending, No. 79-415. We
granted certiorari 444 U.S. 897 (1979), to resolve this conflict
among the Courts of Appeals. [
Footnote 4]
Page 447 U. S. 387
III
The Government recognizes, Brief for United States 31, n. 26,
that our examination of the meaning of § 406 must be informed
by the policy that the Court has expressed as "the rule of lenity."
In past cases, the Court has made it clear that this principle of
statutory construction applies not only to interpretations of the
substantive ambit of criminal prohibitions, but also to the
penalties they impose.
See, e.g., United States v.
Batchelder, 442 U. S. 114,
442 U. S. 121
(1979);
Simpson v. United States, 435 U. S.
6,
435 U. S. 14-15
(1978). The Court's opinion in
Ladner v. United States,
358 U. S. 169,
358 U. S. 178
(1958), states the rule:
"This policy of lenity means that the Court will not interpret a
federal criminal statute so as to increase the penalty that it
places on an individual when such an interpretation can be based on
no more than a guess as to what Congress intended."
See Whalen v. United States, 445 U.
S. 684,
445 U. S. 695,
n. 10 (1980);
Simpson v. United States, 435 U.S. at
435 U. S. 15.
The Court has emphasized that the "touchstone" of the rule of
lenity "is statutory ambiguity."
See, e.g., Lewis v. United
States, 445 U. S. 55,
445 U. S. 65
(1980). Where Congress has manifested its intention, we may not
manufacture ambiguity in order to defeat that intent. The
Government argues here that there can be no uncertainty about
Congress' intent to authorize a special parole term as a penalty
for a conspiracy offense, whenever that penalty is authorized for
the offense that was the target of the conspiracy. In advancing
this argument, it focuses on the language and structure,
legislative history, and motivating policies of the Act. We examine
these three factors in turn.
Page 447 U. S. 388
A
Language and structure of the Act. Several reviewing
courts have adopted the view that the special parole term specified
in § 401(b)(1)(b) is necessarily included within the "term of
imprisonment" to which it is appended.
See, e.g., United States
v. Jacobson, 578 F.2d at 868. Thus, when Congress stated in
406 that a person guilty of attempt or conspiracy "is punishable by
imprisonment," it meant to include within the term "imprisonment"
any special parole term made applicable by the penalty provisions
of the substantive offense. This argument is not too persuasive,
however, because special parole is not authorized for all
substantive offenses to which § 406 refers. Therefore,
"imprisonment" within the meaning of 406 does not always include
special parole. As a period of supervision served upon completion
of a prison term, special parole is also functionally distinct from
incarceration. Finally. the penalty provisions of those substantive
offenses that authorize special parole terms reflect this
functional dichotomy. Section 401(b)(1)(B), for example, twice
provides that a special parole term of years is to be imposed
"
in addition to such term of imprisonment." (Emphasis
added.) We agree, therefore, with the conclusion of those courts
that have rejected the argument that "imprisonment" in § 406
plainly means a term of incarceration plus special parole.
See.
e.g., United States v. Jacquinto, 464 F.
Supp. 728, 729-730 (ED Pa.1979).
Faced with these obstacles, the Government cannot rely solely on
a "plain meaning" interpretation of the term "imprisonment." Thus,
in its principal argument, the Government asks this Court to take a
broader view of the relationship between § 406 and the penalty
provisions for substantive offenses and to conclude that the
structure of the Act, viewed as a whole, creates an inference that
§ 406 incorporates by reference those substantive penalty
provisions. The Government contends that the language of the
statute supports this
Page 447 U. S. 389
reading because § 406 authorizes penalties
"which may not exceed the maximum punishment prescribed for the
offense, the commission of which was the object of the attempt or
conspiracy."
While this argument is not wholly without force, it ignores the
immediately preceding words of § 406, which state that "[a]ny
person who attempts or conspires to commit any offense defined in
this title is punishable
by imprisonment or fine or both."
(Emphasis added.) [
Footnote 5]
Petitioner argues that § 406 defines the types of punishment
authorized for conspirators -- imprisonment, fine, or both -- and
sets maximum limits on those sanctions through reference to the
penalty provisions of the target offense. Petitioner's reading of
the language of § 406, and the sentencing scheme that it
proposes, is no less plausible than the Government's. Moreover, it
is petitioner's reading that finds further support in the structure
of the Act read as a whole.
Section 406 is not the only provision of the Act that defines
sentences by reference to the penalty provisions of other offenses.
Section 405(a) of the Act, 21 U.S.C. § 845(a), which enhances
punishment for one convicted of distributing a controlled substance
to a minor, provides:
"Any person at least eighteen years of age who violates section
401(a)(1) by distributing a controlled substance to a person under
twenty-one years of age is . . . punishable by (1) a term of
imprisonment, or a fine, or both, up to twice that authorized by
section 401(b),
and (2) at least twice any special parole term
authorized by section 401(b), for a first offense involving
the same controlled substance and schedule."
(Emphasis supplied.) [
Footnote
6]
Page 447 U. S. 390
At the least, Congress' separate enumeration of intended
penalties in § 405 confirms its design to adhere to the
functional distinction between "imprisonment, or a fine, or both"
and the unique and novel concept of special parole. That no
reference is made to special parole in § 406 thus supports
petitioner's view that Congress did not intend it to constitute an
element of the sentence imposed upon one convicted of conspiracy or
attempt. [
Footnote 7]
Further proof that Congress intended special parole to be
imposed only for certain substantive offenses defined in § 401
and § 405, and not for other offenses under the Act, is found
in § 401(c), which defines the workings of special parole.
That subsection states: "A special parole term
imposed under
this section or section 405 may be revoked if its terms and
conditions are violated." (Emphasis supplied.) One convicted and
sentenced for conspiracy under § 406 cannot be said to have
had his sentence "imposed under" § 401 or § 405.
[
Footnote 8]
Page 447 U. S. 391
B
Legislative history. Conceding that Congress' draftsmanship when
it enacted § 406 may have been less than "explicit," Brief for
United States 17, and n. 10, the Government asks this Court to look
beyond the ambiguous language of the statute, and to give its words
"their fair meaning in accord with the manifest intent of the
lawmakers."
United States v. Brown, 333 U. S.
18,
333 U. S. 26
(1948). The Government argues that the legislative history of the
Act demonstrates that Congress intended that the penalties
authorized for substantive offenses, and those for conspiracies to
commit them, were to be identical.
It is true that, prior to the Act, federal narcotics legislation
provided for a congruence between sentences authorized for
substantive violations and sentences authorized for conspiracies.
[
Footnote 9] A similar
congruence was a feature of the several bills introduced in
Congress in 1969 that were the forerunners of the Act. But a
special parole term, a sanction previously unknown in the
administration of our system of criminal justice, was not
authorized as a penalty for any offense in those initial proposals.
[
Footnote 10]
The special parole concept first was presented to Congress by
John Ingersoll, Director of the Bureau of Narcotics and Dangerous
Drugs, in testimony before a Senate Subcommittee
Page 447 U. S. 392
on October 20, 1069.
See Narcotics Legislation:
Hearings on S. 1895
et al. before the Subcommittee to
Investigate Juvenile Delinquency of the Senate Committee on the
Judiciary, 91st Cong., 1st Sess., 663, 676 (1969). The Attorney
General earlier had sought Subcommittee approval for further input
from the Justice Department on the penalty structures in the
pending legislation,
id. at 255, and Mr. Ingersoll
presented several alternative penalty schemes for the
Subcommittee's consideration. [
Footnote 11] His comments to the Subcommittee concerning
the special parole provisions were, in their entirety, as
follows:
"Another requirement that has been included in the alternative
penalty schemes is a special parole term that is a part of the
illicit trafficking sentence structure. Just as incarceration is
not always a meaningful answer to effective rehabilitation,
certainly incarceration without an adequate supervisory followup
after release is not in the best interest of society."
"Therefore, we have required a special parole term so that
persons sentenced for trafficking violations would be placed under
supervision for a period of time regardless of whether they are
incarcerated or their sentence probated or suspended. The intent
here is to give the judges another tool for sentencing and another
means of protecting society when dealing with the drug
violator."
Id. at 676.
Page 447 U. S. 393
Mr. Ingersoll did not specify whether special parole terms were
to be authorized for conspiracies to commit trafficking offenses,
see n 11,
supra, and the bill that eventually was approved by the
full Senate Committee on the Judiciary was no less ambiguous.
See S.Rep. No. 91-613, pp. 116-118 (1969). That bill, S.
3246, 91st Cong., 2d Sess. (1970), in its §§ 501(c)(1)
and (2), mandated the imposition of a special parole term whenever
a prison sentence was imposed under the forerunners to §§
401(b)(1)(A) and (b). [
Footnote
12] But § 504 of the bill, the forerunner to § 406,
included no reference to special parole. [
Footnote 13]
The Judiciary Committee's section-by-section analysis of S. 3246
noted that special parole terms were to be imposed for certain
substantive offenses, S.Rep. No. 91-613, at 25, but, with respect
to the "endeavor and conspiracy" provision, stated only:
"Section 504 provides that any person who endeavors or conspires
to commit any offense defined in this title may be punished by
imprisonment and/or a fine, which may not exceed the maximum
punishment prescribed for the offense."
Id. at 26. The Government argues that the Subcommittee
meant to include a specific reference to special parole in §
504 when it amended the substantive offense sections in response to
Mr. Ingersoll's testimony. For unexplained reasons, however the
Subcommittee neglected to make the conforming
Page 447 U. S. 394
change in the conspiracy section. Brief for United States 22.
The wording of the Judiciary Committee's section-by-section
analysis, however, would seem to indicate its awareness that §
504, unlike the subsections of § 501 that had been amended to
incorporate the concept of special parole, authorized punishments
consisting only of "imprisonment and/or a fine."
Further support for the view that the Judiciary Committee knew
what it was doing when it approved § 504 of S. 3246 may be
found in those provisions of the bill that dealt with a second or
subsequent offense. Under the Act, doubly enhanced penalties for
second offenders are included within the provisions defining the
sentences for individual substantive offenses.
See, e.g.,
§ 401(b)(1)(B), quoted
supra at
447 U. S.
383-384. S. 3246, however, contained a separate
provision, § 508(a), that set out the penalties for repeat
offenders. It stated:
"Any person convicted of any offense under this Act is, if the
offense is a second or subsequent offense, punishable by a term of
imprisonment twice that authorized, by twice the fine otherwise
authorized, or by both. If the conviction is for an offense
punishable under subsection 501(c)(1) or subsection 501(c)(2) of
this Act [the forerunners to §§ 401(b)(1)(A) and(b)], and
if it is the offender's second or subsequent offense, the court
shall impose, in addition to any terms of imprisonment and fine,
twice the special parole term otherwise authorized."
S.Rep. No. 91-613, at 119-120. [
Footnote 14]
Page 447 U. S. 395
We think this section of the Senate bill makes it fairly evident
that the Committee recognized that it had provided for the
imposition of special parole terms under various subsections of
§ 501, but that it had not done so generally. [
Footnote 15] Thus, § 508(a) of S.
3246, like § 405 of the Act, reveals that Congress' failure
explicitly to incorporate the concept of special parole into the
Act's conspiracy provision, alleged by the Government to have been
inadvertent, in fact may have been intentional.
The only reference made to the special parole provisions during
the Senate debates on S. 3246 tends to confirm this conclusion.
Senator Dodd, the Subcommittee chairman, summarized the sentencing
provisions of §§ 501(c)(1) and(2) as follows:
"Those selling schedule I and II narcotics such as heroin and
opium can draw a sentence of up to 12 years and a possible fine of
$25,000. For schedules I, II, and III sales of non-narcotics such
as marihuana, 'pep pills' and the like, the sentence is up to 5
years and a possible fine not exceeding $15,000 . A [minimum]
special parole term of from 2 to 3 years is required for each of
the above offenses."
116 Cong.Rec. 996 (1970). Senator Dodd did not mention the
special parole concept in the context of any other sentencing
provisions; § 504, the conspiracy provision of S. 3246, was
not mentioned at all during the Senate debates.
Given the scant support in the legislative history of the Senate
bill for the Government's position, it is not surprising that the
Government must place greater reliance on events that transpired
during the House's consideration of proposed narcotics legislation
similar to S. 3246. H.R. 17463, the subject of hearings before the
House Committee on Ways and
Page 447 U. S. 396
Means in July, 1970, contained penalty provisions that were
substantially identical to those in S. 3246.
See H.R.
17463, 91st Cong., 2d Sess., §§ 501(c)(1),(c)(2), and 504
(1970), reprinted in Ways and Means Hearings 61, 66.
Mr. Ingersoll appeared before the Committee on Ways and Means,
testified as to the Department of Justice's firm support for H.R.
17463, and submitted a section-by-section analysis of the bill
which highlighted the differences between its provisions and
existing federal narcotics legislation. Ways and Means Hearings
210-211. That analysis described the operation of the special
parole terms applicable to § 501(c), and noted: "This special
parole term is a new program, and there are no comparable laws now
in force for narcotic drug law convictions."
Id. at 222.
With respect to the bill's conspiracy provision, § 504, Mr.
Ingersoll's section-by-section analysis stated:
"This section provides that a person may be punished for
endeavoring or conspiring to commit an offense under this Act. Upon
conviction, his sentence may not exceed the punishment prescribed
for the offense which was the object of the attempt or the
conspiracy."
Id. at 223.
The Government would read the second sentence of this passage as
explaining "that the sentencing scheme contemplated that conspiracy
was to be punished to the same extent as object offenses, without
exception." Brief for United States 24. But the Ingersoll
statement, like the language enacted in § 406, explains merely
that the punishment imposed for conspiracy may not exceed the
punishment authorized for the pertinent target offense. It does not
define the punishment authorized under the conspiracy provision to
include special parole, and it does not disavow petitioner's theory
that § 406 defines the types of punishment authorized for
conspiracy, while the penalty provisions of the target offense set
the maximum amounts of those types of punishment that properly may
be imposed. Moreover, a chart submitted
Page 447 U. S. 397
to the Committee by the Justice Department, and appended to Mr.
Ingersoll's section-by-section analysis, specifically noted that
H.R. 17463 authorized the imposition of special parole terms for
certain substantive offenses. Ways and Means Hearings 229. With
respect to the conspiracy section of the bill, however, the chart
contained a footnote that merely reads:
"H R. 17463 provides that any person who endeavors or conspires
to commit any offense under the act may be punished
by
imprisonment and/or fine, which may not exceed the maximum
punishment proscribed [
sic] for committing the
offense."
Id. at 230, n. 6. (Emphasis supplied.) In sum, we find
no persuasive support for the Government's argument in the report
of the hearings before the House Committee on Ways and Means.
The hearings before the Committee on Ways and Means followed
earlier hearings conducted by the House Committee on Interstate and
Foreign Commerce. The latter Committee issued the House Report on
H.R. 18583, 91st Cong., 2d Sess. (1970), which contained additions
and revisions to H.R. 17463 not pertinent to the sentencing
provisions at issue here. H.R.Rep. No. 91-1444, pt 1 (1970). Like
the Senate Report, the House Report appears plainly to recognize
the distinction between the penalties for specific substantive
offenses, authorizing special parole terms, and the conspiracy
offense, authorizing only terms of imprisonment and fines. Thus,
with respect to § 406 of H.R. 18583, the direct ancestor of
the present § 406, the House Report's section-by-section
analysis states:
"Section 406 provides that any person who attempts or conspires
to commit any offense defined in this title may be punished
by
imprisonment and/or fine which may not exceed the maximum amount
set for the offense the commission of which was the object of
the attempt or conspiracy."
H.R.Rep. No. 91-1444, at 50. (Emphasis supplied.)
Page 447 U. S. 398
The grammatical structure of this sentence lends obvious support
to petitioner's theory that § 406 authorizes two types of
sanctions -- fines and imprisonment -- an fixes the maximum amount
of each that may be imposed by reference to the penalty provisions
of the target offense.
In conclusion, we believe that, rather than supporting the
Government's argument that Congress manifested an intention to
authorize special parole terms for conspiracy convictions, the
Act's legislative history supports the opposite view. In hearings,
debates, and legislative reports, to the extent that Congress'
attention was drawn to the matter, Members of both Houses
explicitly recognized that the penalty provisions of some
substantive offenses attached a mandatory minimum term of special
parole to any term of imprisonment. On the other hand, every
reference to one of the forerunners of § 406 stated that it
authorized penalties consisting of imprisonment and/or fine, and
failed to mention special parole.
C
Motivating policy. The Government strongly argues,
finally, that Congress' principal objective in enacting the penalty
provisions of the Act -- to deter professional criminals from
engaging in drug trafficking for profit --
"render[s] it unreasonable to ascribe to [Congress] the intent
to authorize special parole for isolated substantive offenses while
withholding this major sentencing tool for conspiracy
offenses."
Brief for United States 28. This contention is unpersuasive for
two reasons.
First, as petitioner points out, Brief for Petitioner 14-23;
Reply Brief for Petitioner 1-3, a comparison of those drug offenses
for which Congress clearly authorized the imposition of special
parole terms with those for which it clearly did not, does not
reveal a coherent pattern based on the asserted justification for
escalated sanctions . For some of the most serious offenses, as
measured by the length of the term of imprisonment and severity of
the fine they authorize, special
Page 447 U. S. 399
parole is not included among the available sanctions.
E.g., § 408 of the Act, 21 U.S.C. § 848
(continuing criminal enterprise); § 403 of the Act, 21 U.S.C.
§ 843 (registrants); and the new 401(d) of this Act, 21 U.S.C.
§ 841(d) (1976 ed., Supp. II) (piperidine offenses). Thus, the
Government's argument based on Congress' sentencing objectives
would prove too much.
Second, the thrust of the Government's argument is that the
conspiracy to engage in drug trafficking presents at least as great
a threat, if not a greater one, to the community as does an
isolated act of distribution. In other contexts, we have recognized
the logic of that view.
See, e.g., Iannelli v. United
States, 420 U. S. 770,
420 U. S. 778
(1975). From this premise, the Government contends that Congress
must have desired the harsh sanctions incorporated within the
concept of special parole -- the unlimited maximum length of its
term and the grave consequences attending its revocation,
see § 401(c) -- to be available to the judge
sentencing a drug conspirator.
What the Government does not mention, however, is that §
406 sets identical penalties for conspiracies and for attempts.
Congress dealt with both these forms of inchoate crime in a single
provision, and prescribed an identical range of punishment for a
person convicted of participation in a major trafficking conspiracy
and for another person convicted of an unsuccessful attempt to
manufacture or distribute a small amount of a controlled substance.
When one focuses on the fact that § 406 penalizes attempts, as
well as conspiracies, it is not surprising that Congress would
provide for less stringent sanctions to be imposed for violations
of that provision than for a completed substantive offense. Indeed,
as Mr. Ingersoll pointed out in his section-by-section analysis of
H.R. 17463, prior to the passage of this Act, an attempt to commit
a substantive drug offense was not punishable at all under the
federal narcotics laws. Ways and Means Hearings 223. [
Footnote 16]
Page 447 U. S. 400
IV
This investigation into the meaning of § 406, as informed
by an examination of its language and structure, its history, and
relevant policy considerations, yields the likely conclusion that
Congress' failure specifically to authorize the imposition of
special parole terms as punishment for those convicted of
conspiracy was not a slip of the legislative pen, nor the result of
inartful draftsmanship, but was a conscious and not irrational
legislative choice. Our analysis reveals, at the least, a complete
absence of an unambiguous legislative decision to authorize special
parole terms as punishment for those convicted of drug
conspiracies. Of course, to the extent that doubts remain, they
must be resolved in accord with the rule of lenity. [
Footnote 17] If our construction of
Congress' intent, as evidenced
Page 447 U. S. 401
by the scant record it left behind, clashes with present
legislative expectations, there is a simple remedy -- the insertion
of a brief appropriate phrase, by amendment, into the present
language of § 406. But it is for Congress, and not this Court,
to enact the words that will produce the result the Government
seeks in this case.
The judgment of the Court of Appeals is reversed, and the case
is remanded to that court with instructions to vacate the special
parole term that was imposed upon petitioner.
It is so ordered.
[
Footnote 1]
The Act, Pub.L. 91-513, is set forth at 84 Stat. 1236-1296. For
the sake of simplicity, further otherwise appropriate citations to
the Statutes at Large will be omitted.
[
Footnote 2]
This provision was amended in 1978, but the amendment is not
pertinent to the issue presented here.
See Pub.L. 9633,
§ 201, 92 Stat. 3774, 21 U.S.C. § 841(b)(1)(b) (1976 ed.,
Supp. II).
[
Footnote 3]
The Court of Appeals stated that petitioner was charged with two
substantive violations of § 401(a)(1), in addition to the
conspiracy count, and that he was acquitted of the substantive
charges. 600 F.2d 407, 408 (CA2 1979). The parties agree, however,
that this is error, and that petitioner was charged with, and
convicted on, a single conspiracy count. Brief for Petitioner 4, n.
2; Brief for United States 4, n. 2.
[
Footnote 4]
Two Courts of Appeals, in addition to those followed by the
Second Circuit in this case, have joined in the conclusion that
§ 406 authorizes the imposition of a special parole term where
such a term is included in the penalty provisions of the target
offense.
See United States v. Sellers, 603 F.2d 53, 58
(CA8 1979), and
Cantu v. United States, 598 F.2d 471 472
(CA5 1979). In addition, in a number of cases, appellate courts
have affirmed the convictions of defendants sentenced to special
parole terms under § 406 without considering the question
whether special parole was authorized. For example, the question
presented here may have lingered beneath the surface in
United
States v. Timmreck, 441 U. S. 780
(1979).
In
Mearns, the Third Circuit followed the lead of two
District Court opinions (in addition to the opinion there under
review) holding that special parole is not a penalty authorized by
§ 406.
See United States v. Jacquinto, 464 F.
Supp. 728 (ED Pa.1979), and
Fassette v. United
States, 444 F.
Supp. 1245 (CD Cal.1978).
Cf. United States v.
Wells, 470 F.
Supp. 216 (SD Iowa 1979) (adopting the
Mearns
rationale in sentencing, pursuant to 18 U.S.C. § 3,
accessories after the fact to a drug conspiracy).
[
Footnote 5]
The dissent's "ordinary reading of § 406,"
post at
447 U. S. 402,
appears to be based on this same incomplete reading of the words of
the conspiracy provision.
[
Footnote 6]
Section 405(b) likewise provides for treble enhancement of the
fine, the term of imprisonment, and the minimum length of any
special parole term, for one who is convicted a second or
subsequent time for distributing a controlled substance to a
minor.
[
Footnote 7]
The Government argues that the express reference to special
parole in § 405 does not detract from the view that § 406
incorporates special parole by implication. It contends that it was
necessary for Congress to deal with special parole explicitly in
§ 405 because it chose to mandate a minimum special parole
term of at least twice the length of the term authorized under
§ 401(b), whereas § 405 imposes a fine or imprisonment of
up to twice that otherwise authorized. The Government's argument
does not dispel the fact, however, that Congress specifically
accommodated the concept of special parole in one general provision
imposing sentence by reference to other offenses, but did not do so
with respect to an adjacent provision, § 406.
[
Footnote 8]
The Government would explain the specificity of § 401(c) as
an instance where the drafters of that provision
"simply looked to see what sections of the proposed bill used
the term special parole, and inserted those section numbers into
[the forerunner of § 401(c)]."
Brief for United States 26-27, n. 22. It argues, of course, that
although § 406 did not refer to special parole in so many
words, it did incorporate the sentencing provisions of § 401.
We reject the Government's argument for reasons stated in the text.
Moreover, its "explanation" assumes a carelessness in draftsmanship
that probably is unwarranted;
see the following subparts B
and C.
[
Footnote 9]
See 21 U.S.C. §§ 174, 176a, 176b (1964 ed.),
and 26 U.S.C. §§ 7237(a) and (b) (1964 ed.).
[
Footnote 10]
See S. 1895, 91st Cong., 1st Sess., §§
701-708 (1969), and S. 2637, 91st Cong., 1st Sess., §§
501-508 (1969), reprinted in Narcotics Legislation: Hearings on S.
1895
et al. before the Subcommittee to Investigate
Juvenile Delinquency of the Senate Committee on the Judiciary, 91st
Cong., 1st Sess., 69-77, 160-170 (1969).
See also H. R
13743 and H.R. 14774, 91st Cong., 1st Sess., §§ 501-508
(1969), reprinted in Part 1, Drug Abuse Control Amendments -- 1970:
Hearings on H.R. 11701 and H.R. 13743 before the Subcommittee on
Public Health and Welfare of the House Committee on Interstate and
Foreign Commerce, 91st Cong., 2d Sess., 17-20 (1970).
[
Footnote 11]
A chart setting out the alternative penalty schemes proposed by
the Justice Department is included in the record of hearings held
before the Subcommittee on Public Health and Welfare of the House
Committee on Interstate and Foreign Commerce.
Id. at
90-92. This chart describes the penalty provisions favored by the
Department for attempt and conspiracy as providing
"that any person who attempts or conspires to commit any offense
under the Act may be punished by imprisonment and/or fine, which
may not exceed the maximum punishment proscribed for committing the
offense."
Id. at 92. No mention is made of special parole terms
in the conspiracy context. It seems, therefore, that the inexact
draftsmanship that the Government would find in the legislative
history of § 406 is not to be attributed solely to
Congress.
[
Footnote 12]
The forerunner to § 401(b)(1)(b) was § 501(c)(2) of S.
3246. It provided an identical penalty scheme for first offenders
as does the current substantive offense -- a term of imprisonment
of not more than five years, a fine of not more than $15,000, or
both, and a 2-year minimum special parole term in addition to any
term of imprisonment.
See S.Rep. No. 91-613, at 116.
[
Footnote 13]
Section 504 of S 3246, which differed from § 406 only in
its use of the term "endeavor," rather than "attempt,"
provided:
"Any person who endeavors or conspires to commit any offense
defined in this title is punishable by imprisonment or fine or both
which may not exceed the maximum punishment prescribed for the
offense, the commission of which was the object of the endeavor or
conspiracy."
S.Rep. No. 91-613, at 118.
[
Footnote 14]
An identical provision was contained in H.R. 17463, 91st Cong.,
2d Sess., § 508(a) (1970), a forerunner of the Act approved by
one of the two House Committees to conduct hearings on the proposed
narcotics legislation.
See Controlled Dangerous
Substances, Narcotics and Drug Control Laws: Hearings on H.R. 17463
before the House Committee on Ways and Means, 91st Cong., 2d Sess.,
69 (1970) (hereinafter Ways and Means Hearings). The bill
eventually passed by the House, H.R. 18583, 91st Cong., 2d Sess.
(1970), incorporated enhanced penalties for repeat offenders within
the individual substantive offenses.
See 116 Cong.Rec.
33625 (1970). The House bills are discussed further below.
[
Footnote 15]
The Government makes the same argument with respect to the
repeat offender provisions of S. 3246 and H.R. 17463 that it makes
with respect to § 405,
see n 7,
supra. The argument is no more persuasive
here.
[
Footnote 16]
The dissent takes us to task for failing to recognize that it is
unlikely that Congress would intend that "the directors of a
narcotics distribution business be punished less severely than
their subordinates who merely peddle the poison."
Post at
447 U. S. 402.
But even a cursory reading of the Act should make it clear that our
opinion today will not result in the sentencing disparity the
dissent fears. Section 406's punishment provisions are not the sole
sanctions Congress enacted for apprehended directors of organized
drug trafficking operations. First, nothing prevents the Government
from prosecuting the operators of a distribution network, either as
principals or as aiders and abettors, for substantive
manufacturing, distribution, and possession offenses, pursuant to
§ 401 of the Act, 21 U.S.C. § 841. Second, and more
significantly, Congress enacted two special provisions with the
directors of large trafficking operations particularly in mind. The
sanctions available under those provisions are especially severe.
See § 408 of the Act, 21 U.S.C. § 848
(continuing criminal enterprise); §§ 409(e)(2) and(3) of
the Act, 21 U.S.C. §§ 849(e)(2) and (3) (defining a
special drug offender).
[
Footnote 17]
One might quarrel with our conclusion that Congress was aware of
the distinction between the penalty provisions of §
401(b)(1)(b) and § 406, and chose not to include special
parole terms among the sanctions authorized for attempts and
conspiracies. That it would be extremely difficult to accept the
Government's argument that Congress unambiguously intended a
contrary result, however, perhaps is best evidenced by the fact
that the rule of lenity is not mentioned, let alone applied, in any
of the lower court opinions that have accepted the Government's
position.
See cases cited in
n 4,
supra, and accompanying text. The dissenting
opinion would appear to fare little better on that score.
MR. CHIEF JUSTICE BURGER, concurring.
If the question presented by this case were as simple and easy
as the dissent formulates it -- whether "the directors of a
narcotics distribution business [should] be punished less severely
than their subordinates who merely peddle the poison" -- none of us
would have any difficulty with the decision. But that is not really
the issue. Rather, the question before the Court is substantially
more limited: what do the words of the statute mean? Of course, we
must try to discern the intent of Congress. But we perform that
task by beginning with the ordinary meaning of the language of the
statute. Our compass is not to read a statute to reach what we
perceive -- or even what we think a reasonable person should
perceive -- is a "sensible result"; Congress must be taken at its
word unless we are to assume the role of statute revisers.
Aaron v. SEC, 446 U. S. 680
(1980);
TVA v. Hill, 437 U. S. 153,
437 U. S. 173
(1978).
Particularly in the administration of criminal justice, a badly
drawn statute places strains on judges.
See, e.g., Busic v.
United States, 446 U. S. 398
(1980);
LaRocca v. United States (decided with
Busic). The temptation to exceed our limited judicial role
and do what we regard as the more sensible thing is great, but it
takes us on a slippery
Page 447 U. S. 402
slope. Our duty, to paraphrase Mr. Justice Holmes in a
conversation with Judge Learned Hand, is not to do justice, but to
apply the law and hope that justice is done. The Spirit of Liberty:
Papers and Addresses of Learned Hand 306-307 (Dilliard ed.1960)
Not without the same reluctance that, in my view, underlies the
Court's opinion, I join the opinion.
MR. JUSTICE STEVENS, with whom MR. JUSTICE WHITE and MR. JUSTICE
REHNQUIST join, dissenting.
Should the directors of a narcotics distribution business be
punished less severely than their subordinates who merely peddle
the poison? It is unlikely that Congress so intended.
See
Callanan v. United States, 364 U. S. 587,
364 U. S.
5930594.
Since an ordinary reading of § 406 [
Footnote 2/1] of the Comprehensive Drug Abuse Prevention
and Control Act of 1970 implies that a conspirator may be punished
just as severely as a substantive offender, I would so construe the
statute. This construction is fortified by the total absence of any
statement by any legislator suggesting any purpose to treat
conspirators in the drug trade with any greater lenity than
substantive offenders. [
Footnote
2/2] This is particularly important in view of the fact that,
prior to the 1970 Act, Congress had authorized
Page 447 U. S. 403
identical penalties for conspiracies and completed offenses.
See ante at
447 U. S.
391.
Because the statutory language conveys quite a different meaning
to me, and because the Court has not paused to consider the narrow
issue presented by this case in the context of the larger
objectives Congress was seeking, I respectfully dissent.
[
Footnote 2/1]
"Any person who attempts or conspires to commit any offense
defined in this title is punishable by imprisonment or fine or both
which may not exceed the maximum punishment prescribed for the
offense, the commission of which was the object of the attempt or
conspiracy."
84 Stat. 1265, 21 U.S.C. § 846.
[
Footnote 2/2]
Surely the Court's reference
ante at
447 U. S. 399,
to the offense of attempt cuts the other way, for it is common for
legislation to authorize the same range of punishments for attempts
as for substantive offenses.
See, e.g., American Law
Institute, Model Penal Code § 5.05(1) (Prop.Off.Draft 1962),
which provides in part:
"Except as otherwise provided in this Section, attempt,
solicitation and conspiracy are crimes of the same grade and degree
as the most serious offense which is attempted or solicited or is
an object of the conspiracy."