An Odd “Supervised Release” Law Bites the Apprendi Dust

In most American jurisdictions, there are provisions by which a person who could be incarcerated for an offense can be released but subject to supervision under conditions. If he violates the conditions, he can be sent to jail or prison with a more expedited procedure and lower burden of proof than would be required for a new criminal conviction. These arrangements include probation, parole, and, in the federal system, “supervised release.”
In most cases, the time that the conditions-violator spends behind bars is time he could have spent there for the original offense. However, in 18 U.S.C. §3583(k), Congress provided that violators found to have committed certain new offenses, including possession of child pornography, must receive an additional prison term of five years, not limited by the term for the original offense.
Not surprisingly, the Supreme Court held today that this term is more like a new conviction than a traditional parole/probation revocation, and it is subject to the requirements of trial by jury and proof beyond a reasonable doubt under the Apprendi line of cases. The case is United States v. Haymond, No. 17-1672.
The Court was narrowly divided, and it is likely that the disagreement is more about the possibility of Apprendi sprawling to broader new areas than it is about application to this single odd statute. Justice Gorsuch’s lead opinion is a plurality. Justice Breyer, who has opposed Apprendi and its sprawl from the beginning, concurs only in the judgment. Justice Alito, joined by Chief Justice Roberts and Justices Thomas and Kavanaugh, sounds the sprawl alarm.
I do not think that there is a constitutional basis for today’s holding, which is set out in Justice Breyer’s opinion, but it is narrow and has saved our jurisprudence from the consequences of the plurality opinion, which is not based on the original meaning of the Sixth Amendment, is irreconcilable with precedent, and sports rhetoric with potentially revolutionary implications. The plurality opinion appears to have been carefully crafted for the purpose of laying the groundwork for later decisions of much broader scope.
What do I mean by this? Many passages in the opinion suggest that the entire system of supervised release, which has been an integral part of the federal criminal justice system for the past 35 years, is fundamentally flawed in ways that cannot be fixed. Under the Sentencing Reform Act of 1984 (SRA), whenever a federal court sentences a criminal defendant to a term of imprisonment, the court may include in the sentence a term of supervised release, and under some circumstances supervised release is mandatory. 18 U. S. C. §3583. When a court imposes a term of supervised release, the order must specify the conditions with which the defendant is required to comply,§3583(d), and a judge may revoke supervised release and send a defendant back to prison if the judge finds by a preponderance of the evidence that the defendant violate done of those conditions, §3583(e)(3).
Generally speaking, probation/parole/supervised release revocations should not present an Apprendi problem. A broad attack on supervised release revocations would indeed be a grave concern. The direct effects of today’s decision are not severe, but future developments warrant monitoring.


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