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SCOTUS Declares Portion of Federal Supervised Release Statute Unconstitutional

by Dale Chappell

A sharply divided Supreme Court of the United States narrowly held on June 26, 2019, that the revocation provision of the federal sex offender supervised release statute is unconstitutional because it violates the right to trial by jury under the Fifth and Sixth Amendments – so a sentence imposed under that provision must be vacated. However, a majority of the Court could not agree on whether federal supervised release as a whole should be revamped to require a higher standard of proof to send violators back to prison.

The case came before the Court when the Government petitioned for review of a decision of the U.S. Court of Appeals for the Tenth Circuit, which held that the revocation provision of 18 U.S.C. §3583(k) is unconstitutional and vacated Andre Haymond’s revocation sentence imposed under that provision.

Haymond was on supervised release after completing a 38-month sentence for possession of child pornography in 2010 when he was found with what appeared to be downloaded child pornography on his smartphone. While the judge at the revocation sentencing said he would have imposed “two years or less” for the violation, he was required under § 3583(k) to impose at least five years in prison. The judge called this “repugnant” but complied with the law.

On appeal, the Tenth Circuit agreed with Haymond that the revocation provision of § 3583(k) is unconstitutional, “because it strips the sentencing judge of discretion to impose punishment within the statutorily prescribed range” under the supervised release statute, § 3583(e), and because “it imposes heightened punishment on sex offenders based, not on their original crimes of conviction, but on new conduct for which they have not been convicted by a jury beyond a reasonable doubt.” United States v. Haymond, 869 F.3d 1153 (10th Cir. 2017).

The Government petitioned the Supreme Court for review, and five justices agreed with the Tenth Circuit. In a concurring opinion by Justice Breyer, adding the fifth and decisive vote against the Government, he agreed that “this specific provision” of § 3583(k) is unconstitutional. That narrow concurrence upheld the Tenth Circuit’s ruling. But that was the only issue that a majority of the Court could agree on.

Under 18 U.S.C. § 3583(e)(3), a court may revoke a term of supervised release and impose a prison sentence if the court finds by a preponderance of the evidence that the defendant violated the conditions of his supervised release. The maximum sentence allowed for the violation under §3583(e) depends on the “class” of the original offense, but it cannot go above five years in prison, even for the highest “class A” offense. 18 U.S.C. §§ 3559(a) (listing classes) and 3583(b) (maximum terms of supervised release).

However, in its efforts to substantially increase punishments for sex offenders, Congress enacted the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (“PROTECT Act”) in 2003, adding subsection (k) to § 3583 to ensure that any sex offender who “commits” a new sex offense while on supervised release would face at least five years and up to life in prison. (§ 3583(k) is actually three sentences long. The first requires a minimum of five years and up to life terms of supervised release for sex offenders; the last two deal with revocation of supervised release.)

The problem with § 3583(k), the Supreme Court said, is that a conviction isn’t even required for a court to impose a mandatory prison sentence. Instead, a court is only required to find by a “preponderance of the evidence” that the defendant committed the new offense in order to impose the sentence. In Haymond’s case, the district court found by a preponderance of the evidence that he possessed the child pornography while on supervised release before it imposed the sentence.

Justice Breyer agreed with the plurality on this point. He said that § 3583(k) was “less like ordinary revocation and more like punishment for a new offense, to which the jury right would typically attach.” In fact, the Court recognized that had the Government filed new charges against Haymond for the child pornography on his phone, he would have faced up to 20 years in prison for the new crime, if he were found guilty by a jury beyond a reasonable doubt, instead of up to life under § 3583(k) by a mere preponderance of the evidence found by a judge.

But the plurality dug deeper into federal supervised release as a whole, distinguishing it from traditional parole, where a prisoner could be released to serve the remainder of his sentence on parole. When parole was abolished under the Sentencing Reform Act of 1984, supervised release replaced it. But they are not the same, the Court explained. Supervised release wasn’t introduced to replace a prison term like parole, the Court noted, but only to encourage rehabilitation after a prison term. Indeed, a prisoner must serve nearly all of his sentence before being released on supervised release, the Court pointed out.

Under parole, a court could impose a sentence for a parole violation only up to the maximum authorized by the original prison sentence. A revocation was not a new punishment under parole.

This makes supervised release different from parole, the Court said. And that difference means that additional constitutional protections are necessary when a court revokes supervised release and imposes a “new punishment.”

Analyzing two decades worth of decisions requiring that only a jury may find facts to impose a mandatory minimum sentence or to extend the statutory maximum for an offense, the plurality said those decisions should also apply to supervised release revocation sentencing. But this is where Breyer drew the line and where the Court divided. For now, Justices Gorsuch, Ginsburg, Sotomayor, and Kagan would require more for supervised release revocation sentencing, while five of the other justices would not. The plurality’s opinion, though, laid the groundwork for a possible future case on the issue.

The limited holding by the five justices only held that, unless a mandatory minimum sentence for a supervised release revocation is established by facts found by a jury beyond a reasonable doubt, a judge’s findings under a preponderance of the evidence are not enough to meet constitutional muster. Supervised release, as a whole, has survived for now, but its foundation has been questioned.

Accordingly, the Court remanded Haymond’s case to the lower courts to address what remedy should apply. See: United States v. Haymond, 139 S. Ct. 2369 (2019).

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Writer’s note: Plurality opinions are hard because the “majority” opinion (the issue that five of the justices agreed on) is often very narrow. Haymond is an example of this. But Haymond is the second opinion by Justice Gorsuch in a two-day period declaring a criminal statute unconstitutional (Davis declaring § 924(c)’s residual clause unconstitutional was the first). And Haymond is an interesting move by the Court. For years, courts have criticized the PROTECT Act for singling out sex offenders for harsh punishments, saying the Act isn’t necessary. Haymond excised part of the Act as unconstitutional. 

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