By Devon Unger | Due Process Institute | Research + Writing Fellow
Labels matter, particularly in law. Courts often make a fine distinction between the criminal and civil spheres when deciding when certain rights will apply, even when the lines are exceptionally blurry or entirely a judicial construct (civil versus criminal detention, for example). But the government can’t simply label something differently to sidestep the Constitution, and during its last term, the Supreme Court affirmed this principle in United States v. Haymond. In this case, the Court held that the Government can’t avoid the guarantee of the Sixth Amendment simply by calling something a “revocation.” However, despite the case’s sweeping proclamations regarding the right to a jury trial, the holding in Haymond is actually relatively narrow, as I explain below.
In Haymond, the Court dealt with a provision of the Sex Offender Registration and Notification Act (“SORNA”), which established mandatory minimum prison sentences for individuals found to have committed certain sexual offenses while on “supervised release,” which is a set period of time post-imprisonment during which a person is no longer incarcerated but is still subject to a number of conditions and specific limitations they are ordered by the court to meet. The specific provision at issue, 18 U.S.C. § 3583(k), requires a judge to revoke any period of supervised release and imprison an individual for at least five years and potentially up to life, if the judge finds by a preponderance of the evidence that the individual committed certain types of criminal offenses. In essence, § 3583(k) creates a class of individuals who, by virtue of a particular type of prior conviction, are subject to imprisonment in addition to the sentence imposed for their original conviction, based on the opinion of an individual judge who is applying a very low burden of proof.
The Sixth Amendment provides the right to a jury trial in all criminal matters, and the Court has interpreted due process under the Fifth Amendment to require that the facts supporting a criminal charge be proven beyond a reasonable doubt, consistent with long-standing traditions in common-law jurisdictions. These are immovable and foundational aspects of our criminal legal system, but as the Court recognized in Haymond, these principles are subject to undermining by “legislative innovations” often directed at unpopular and marginalized groups. In this case, the legislative innovation is supervised release. “Supervised release” replaced “parole” in the Federal system with the passage of the Sentencing Reform Act of 1984, and the distinction between supervised release and parole is very important to the Court’s analysis in Haymond. When an individual is paroled, he or she is released after serving only a portion of the original jail sentence imposed. If a defendant violates the specific conditions of his or her parole, at worst the judge can hold a hearing and send the defendant back to jail to serve the remainder of his or her original sentence.
However, supervised release is a period of supervision that follows the completion of a sentence of incarceration in which the defendant has served all or most of the time for which he was originally sentenced. The penalties for violating supervised release bear no relation to the original sentence, and as illustrated in Haymond can extend a defendant’s sentence well beyond the applicable sentence for the crime of conviction. This does not square with the Fifth and Sixth Amendment’s guarantees. Thus, the Supreme Court determined that subsection (k) of § 3583 was unconstitutional. This makes good sense. What the Government accused Mr. Haymond of doing as a basis for revoking his supervised release was, in fact, a new criminal offense. Yet, the Government chose not to proceed with a prosecution, as it would have to in any other circumstance. After all, as Justice Gorsuch points out, “why bother with an old-fashioned jury trial for a new crime when a quick-and-easy ‘supervised release revocation hearing’ before a judge carries a penalty of five years to life?”
What will be the effect of this case beyond its specific holding? In my opinion, not much. The true effect of the decision in Haymond is complicated a little by the way in which the various opinions of the Justices played out. There is technically no “majority” opinion in the case because the opinion authored by Justice Gorsuch was joined by only three other Justices. However, Justice Breyer concurred in the plurality opinion but wrote separately in what I perceive as an effort to limit the reach of the Court’s holding. (For the law nerds among you: when there is no clear majority opinion, the opinion of the justice whom joins in the judgment with what constitutes a majority of the Court but decides the case on the narrowest grounds will be the controlling opinion.)[i] The dissent in Haymond points out that the plurality opinion could have a possibly earth-shattering impact on supervised release by applying the Sixth Amendment to the proceedings. Although the plurality hand-waves this argument by pointing out that in most circumstances a revocation sentence will not exceed the original statutory sentence imposed on a defendant, I believe the dissent has a point. The plurality’s language is very broad and very sweeping, and there is an inherent skepticism regarding the application of penalties based on judicial fact-finding under a preponderance standard. If I were arguing a case to challenge the regime of supervised release in its entirety, I would certainly borrow heavily from the plurality’s opinion.
Breyer’s opinion, on the other hand, declines to make a clear distinction between supervised release and parole. He makes three specific distinctions regarding subsection (k) that substantially narrows the potential implications of the Court’s holding: 1) Section 3583(k) only applies when the defendant is accused on a set of discrete federal criminal offenses (not just any violation); 2) Section 3583(k) requires revocation, leaving the judge no discretion once he or she finds that a violation has occurred; and 3) Section 3583(k) imposes a mandatory minimum jail sentence. Based on these factors, Justice Breyer determined that a revocation under § 3583(k) is much more akin to a new criminal prosecution than a typical supervised release revocation, and thus, the full panoply of procedural rights must apply when the circumstances match these criteria. Thus, while the dissent sounds the alarm about the impending end of supervised released based on the foundation laid in the Haymond plurality, as long as Justice Breyer sits on the Court, this position is unlikely to find five votes.
Although the case doesn’t go as far as I’d like to it, I am pleased to see the Court seize on arguments raised in the brief DPI filed in support of Mr. Haymond. This is still a major victory for fairness, and hopefully, this is a step in the right direction in reinvigorating the jury trial right.
[i] This principle is best exemplified in the Court’s ruling in Van Orden v. Perry. Van Orden dealt with a Ten Commandments Monument on the grounds of the Texas State capitol which faced a First Amendment Establishment Clause challenge. Justice Scalia issued an opinion, joined by three other Justices, that would have created a blanket rule allowing such religious displays on public property. Justice Breyer wrote a solitary concurring opinion in which he found the specific monument at issue to be permissible under the First Amendment, but left open the possibility that similar monuments could pose Establishment Clause issues in the right context (Breyer joined a majority opinion on the same day striking down a Ten Commandments display in a Kentucky courthouse as unconstitutional based on the context in which it was created). Breyer’s opinion occupies a similar role in Haymond.