The U.S. Supreme Court is currently considering whether a jury—as opposed to a judge—must make certain findings of fact necessary to revoke a defendant’s supervised release. A section of the relevant statute, 18 U.S.C. Section 3583(k), requires that convicted defendants return to prison for a minimum of five years, and up to a term of life, if they are found to have violated the terms of their supervised release. The statute requires only that a judge find, by a preponderance of the evidence, that such violation has occurred. The Supreme Court will decide whether this process violates a defendant’s Sixth Amendment right to trial by jury.
Andrew Haymond, an Oklahoma man, was convicted of possessing child pornography and sentenced to 38 months in prison to be followed by 10 years of supervised release. He completed his prison term, and—while serving his term of supervised release—he was again caught possessing child pornography. That conduct, which could have supported an independent criminal charge, constituted a violation of the terms of his supervised release. The government moved to revoke Haymond’s supervised release and return him to prison. The district court found, by a preponderance of the evidence, that Haymond knowingly possessed this material, triggering the mandatory minimum of five years re-imprisonment under Section 3583(k).
The district judge, however, expressed frustration with that statutory mandate: “Were there not this statutory minimum, the court … probably would have sentenced in the range of two years or less.” The U.S. Court of Appeals for the Tenth Circuit went a step further. The appellate court vacated Haymond’s sentence and remanded for resentencing, holding that Section 3583(k) is unconstitutional because it can operate to increase a mandatory minimum sentence without any additional findings by a jury, and it can impose extra punishment on defendants for new, post-sentencing conduct on which they have not been convicted by a jury beyond a reasonable doubt.
The Supreme Court agreed to review the case. In its briefs, the government argued that the revocation of supervised release is not a criminal prosecution, but more akin to a “sentence administration” function—like parole or probation—and therefore does not trigger the Sixth Amendment. By contrast, Haymond argued that Section 3583(k) required an unconstitutional enhancement of his original sentence (zero to two years) to a minimum of five years without the right to a jury, in violation of his constitutional rights as recognized by the Supreme Court in Apprendi v. New Jersey (2000) and Alleyne v. United States (2013). He asked the court to strike down that section of the supervised release statute, leaving the remainder of the statute intact.
At oral argument, the majority of the justices appeared to side with Haymond, suggesting serious constitutional concerns with Section 3583(k) and the current procedure under that statute.
Justice Sonia Sotomayor set the tone early by asking: “Is there any other area of law in which we permit imprisonment by a preponderance of the evidence?” The government responded by analogizing Haymond’s re-imprisonment to the revocation of parole, but Sotomayor remained skeptical, calling the comparison “apples and oranges.” She emphasized that, while parole revocation does not enhance the original sentence received by a defendant, Section 3583(k) operates to add an additional term of incarceration, beyond the sentence received to “stretch the maximum of a defendant’s earlier term.”
Justice Neil Gorsuch also seemed skeptical of the government’s position. Addressing the analogy to parole, he noted that Congress intentionally eliminated those punishments under federal criminal law. He added, furthermore, that the government should not be opposed to allowing juries to decide these questions: “Why is the government so anxious to avoid having the involvement of citizens in this process? … it would be a rather simple thing to convene a jury, wouldn’t it?”
Other justices questioned the comparison, as well, with Justice Brett Kavanaugh stating that revocation in Haymond’s case “seems more like a penalty rather than a denied benefit.” Justice Elena Kagan asked, point blank, “it just seems if this isn’t a clear-cut violation of Apprendi and Alleyne, like, what is?” Only Justice Samuel Alito asked questions that suggested sympathy to the government’s cause, cautioning that his colleagues’ suggestions “would bring down the entire system of supervised release as we know it.”
The court will likely issue a decision before the end of June.
Stephen A. Miller practices in the commercial litigation group at Cozen O’Connor’s Philadelphia office. Prior to joining the firm, he clerked for Justice Antonin Scalia on the U.S. Supreme Court and served as a federal prosecutor for nine years in the Southern District of New York and the Eastern District of Pennsylvania.
Matthew Ohlheiser also practices in the firm’s commercial litigation group. He received his J.D. from the University of California, Berkeley School of Law, and his B.A., magna cum laude, from Bates College.