If Congress makes an obvious error in drafting a statute, can a court correct that error by effectively adding something to the statute that is not there?  Such was the interesting jurisprudential question the Seventh Circuit confronted last January in United States v. Head, 552 F.3d 640 (2009).  Because of a mix-up with statutory cross-references, the statute that lists permissible conditions of supervised release in the federal system does not include assignment to a halfway house.  However, the first seven circuits to consider the question held that sentencing judges could indeed order placement in a halfway house, reasoning that a literal interpretation of the statute would produce an absurdity.  In Head, the Seventh Circuit bucked the trend and rejected the government’s absurdity argument.  (My post on Head is here.)  Although Congress corrected its drafting error with a 2008 amendment, Head held that the amendment could not be applied retroactively, meaning that assignment to a halfway house seemed to be off the table as a sentencing option for a large group of defendants still moving through the court system in this region.

But now the court has significantly limited the significance of Head in United States v. Anderson (No. 09-1958). 

For conditions of supervised release, 18 U.S.C. § 3583 (in its pre-2008 form) authorized a sentencing court to select just about any of the permissible conditions of probation (except assignment to a halfway house) and “any other condition it considers to be appropriate.”  In Anderson, the Seventh Circuit (per Judge Wood) held that this latter language, the “catch-all provision,” permits assignment to a halfway house.  In Head, the court had rejected this reading of the catch-all provision, reasoning that the inclusion of the halfway-house condition in the probation statute and the lack of specific authorization for the condition in the supervised release statute decided the question; a general catch-all provision could not overcome the negative implication created by the statute’s failure to authorize the condition expressly. 

Anderson downplayed this aspect of Head:

Head indicated in a footnote that the catch-all provision did not recapture the power to impose the halfway-house condition . . . . This theory, however, had not been pressed by the Government . . . .

In effect, Anderson seems to treat Head’s analysis of the catch-all provision as mere dicta and adopts a quite different interpretation: the “any other condition” language means what it says, “confer[ring] broad discretion on the district courts to fashion appropriate conditions of release that compl[y] with the broad goals of sentencing.”  Thus, it turns out (per Anderson) that Head only held that the halfway-house condition was not expressly authorized by the supervised-release statute; Head did not really decide whether the condition was prohibited.  Anderson now tells us that the condition is not prohibited.

Anderson‘s interpretation of Head strikes me as rather strained.  But the Anderson panel circulated its opinion to the full court, and not one judge voted to hear the case en banc.  It seems odd that the court has so thoroughly undermined such a recent decision as Head, which is only nine months old, without a single voice raised in protest.  I suppose this is a rather arcane aspect of sentencing law, and perhaps no one really cares.  Or perhaps something in the new cases convinced the judges that Head had sacrificed too much by way of sound corrections policy in the name of textualist purity.  Perhaps the overwhelming weight of contrary precedent in the other circuits also contributed to the judges’ discomfort with Head.