Does 18 U.S.C. § 3583(k), which imposes mandatory sentencing for violations of supervised release conditions, deny criminal defendants their Sixth Amendment right to a jury trial?
This case asks the Supreme Court to consider the constitutionality of the sentencing requirements under 18 U.S.C. § 3583(k) (“Section 3583(k)”), which imposes a mandatory resentencing requirement for individuals who violate a condition of their supervised release. Specifically, the Court will consider whether Section 3583(k) denies criminal defendants their right to a jury trial under the Sixth Amendment. The United States argues that the mandatory sentencing is constitutional because the jury right only applies to the imposition of a sentence, while Section 3583(k) merely administers a sentence that had already been imposed. Haymond contends that Section 3583(k) imposes a new sentence for the conduct found to be a violation of the conditions of supervised release. This outcome in this case may have a meaningful impact on the interpretation of the Sixth Amendment and influence how courts determine which punishment to impose after a defendant violates conditions of probation or parole.
Questions as Framed for the Court by the Parties
Whether the U.S. Court of Appeals for the 10th Circuit erred in holding “unconstitutional and unenforceable” the portions of 18 U.S.C. § 3583(k) that required the district court to revoke the respondent’s 10-year term of supervised release, and to impose five years of reimprisonment, following its finding by a preponderance of the evidence that the respondent violated the conditions of his release by knowingly possessing child pornography.
After trial in the United States District Court for the Northern District of Oklahoma in 2010, a jury convicted Andre Ralph Haymond of one count of possession and attempted possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2). Although the advisory guideline range recommended a prison sentence between fifty-one to sixty-one months, the district court determined that a sentence outside the guideline range was appropriate because, among other reasons, Haymond had no prior criminal history and the amount of child pornography that Haymond possessed was less than other such cases. Accordingly, the district court sentenced Haymond to thirty-eight months of imprisonment and a subsequent ten years of supervised release.
Haymond’s supervised release began on April 24, 2013. Two and a half years after Haymond’s supervised release, probation officers conducted a surprise search of his apartment. The officers seized Haymond’s cellphone as well as computers belonging to Haymond and his roommate. After conducting a forensic examination of Haymond’s cellphone, a probation officer discovered that the internet history contained numerous visits to pornographic websites and that the phone contained child pornography images. Based on this evidence, the probation officer alleged that Haymond had violated numerous conditions of his supervised release—including requirements that he not view or possess any pornography, and that he not commit a federal, state, or local crime.
The district court found by a preponderance of the evidence that Haymond violated the terms of his supervised release. Consequently, the district court revoked Haymond’s supervised release and, pursuant to 18 U.S.C. § 3583(k) (“Section 3583”), imposed the mandatory minimum sentence of five years imprisonment to be followed by five years of supervised release. On appeal, Haymond challenged one of his alleged violations, arguing that the evidence was insufficient to prove by a preponderance of the evidence that he knowingly possessed child pornography. Further, Haymond contended that the mandatory minimum sentence imposed by Section 3583(k) is unconstitutional because it deprives him of due process.
The United States Court of Appeals for the Tenth Circuit not only agreed with the district court’s conclusion that Haymond violated the terms of his supervised release, but it also agreed with Haymond’s contention that the mandatory sentence imposed by Section 3583(k) is unconstitutional. Specifically, the Tenth Circuit held that the mandatory sentence violates the Fifth and Sixth Amendments of the Constitution because it disallows a sentencing judge from discretionarily imposing a sentence within the statutory range. The court also concluded that mandatory sentencing authorizes the judge to exact a heightened punishment on a defendant for conduct that a jury has not found the defendant guilty of beyond a reasonable doubt. Ultimately, the Tenth Circuit affirmed the district court’s revocation of Haymond’s supervised release, but vacated Haymond’s sentence and remanded the case for resentencing. The Tenth Circuit instructed that resentencing should be conducted under 18 U.S.C. § 3583(e)(3), which affords the sentencing judge discretion to revoke a term of supervised release and impose a prison sentence. Because Haymond had been detained for twenty-eight months following his arrest, the district court on remand imposed a sentence of time served and imposed an additional two years of supervised release.
The United States filed a petition for writ of certiorari, and the Supreme Court granted the petition on October 26, 2018.
DOES THE SIXTH AMENDMENT JURY RIGHT EXTEND TO THE REVOCATION OF SUPERVISED RELEASE AND REIMPRISONMENT?
The United States contends that the Sixth Amendment’s right to a jury (“jury right”) in all criminal prosecutions applies to the imposition of a sentence, but not the administration of a sentence. Indeed, the United States claims that the jury right applies to “all criminal prosecutions,” but the “criminal prosecution” ceases at the end of the trial. In support of this argument, the United States appeals to dictionary definitions and William Blackstone’s Commentaries on the Laws of England to argue that the “criminal prosecution” is separate from the enforcement of a sentence. The United States also points to Supreme Court precedent, including Morrissey v. Brewer, where the Court held that the jury right does not extend to post-judgment proceedings that implement a sentence already imposed, as well as Gagnon v. Scarpelli, where the Court reached the same conclusion regarding revocation of probation. The United States argues that although a criminal defendant is subject to a loss of liberty through the revocation of parole or probation, other due process rights (for example, being granted a preliminary hearing, confronting and cross‑examining adverse witnesses at the hearing, and disclosure of evidence against the defendant) attach to those potential deprivations of liberty, but the jury right does not.
Furthermore, the United States contends that the rule established in Apprendi v. New Jersey—that the jury right applies whenever a judge seeks to impose a mandatory sentence that is not based solely on facts reflected in a jury verdict or admitted by the defendant—only applies to the imposition of a sentence. The United States argues that the language of the Apprendi rule does not suggest that the jury right applies to post-judgment facts that relate to the administration of a previously imposed sentence. Rather, according to the United States, the Apprendi rule is meant to protect the accused at trial. Finally, the United States asserts that its position is supported by history. In support, the United States cites to English common-law and numerous Supreme Court cases stating that the courts have historically recognized that juries and the jury right do not play a role in the revocation of conditional liberty like parole or probation. For these reasons, the United States posits that Haymond’s jury right was not violated when the district court administered a sentence on Haymond under Section 3583(k) without convening another jury.
Haymond, in rebuttal, argues that the relevant provisions of Section 3583(k) sever the link between the original crime that resulted in the sentence and the subsequent revocation of supervised release and reimprisonment. By severing this link, Haymond contends, the penalty of revocation and reimprisonment is no longer attributable to the initial offense. Rather, the revocation and reimprisonment penalty, Haymond maintains, is tied directly to the new conduct underlying the judge’s decision to revoke and reimprison. Haymond asserts that these circumstances pose serious constitutional issues because the defendant is not afforded his constitutionally-protected jury right in a proceeding where punishment is based upon a determination of whether the defendant has committed a new crime. In response to the United States’ argument concerning the difference between the imposition and the administration of a sentence, Haymond posits that the Court’s decisions have cautioned against making this distinction. Further, Haymond argues that even if this distinction were accurate, the revocation of supervised release and reimprisonment under Section 3583(k) is actually the imposition of a sentence because the statute imposes a mandatory period of reimprisonment that can be longer than the original sentence itself. Haymond also contends that an application of Apprendi reveals that Section 3583(k) denies the defendant his jury right under circumstances where the jury right must be afforded. Haymond characterizes Section 3583(k) as a mandatory sentencing enhancement, and further argues that this sentencing enhancement functions indistinguishably from those sentencing enhancements that the Court struck down in Apprendi. More specifically, Haymond maintains that courts have used the Apprendi rule to strike down sentences in cases where a defendant violated parole by committing a crime in a particular fashion, causing courts to improperly impose a longer term of imprisonment. In the present case, Haymond posits that the same thing occurs—Section 3583(k) imposed a mandatory five-year imprisonment after the court determined that Haymond violated the terms of the supervised release in a particular fashion. Under this application of Apprendi, Haymond asserts that the statute improperly increases the range of penalty to which the defendant is exposed. Section 3583(k), according to Haymond, imposes significant terms of imprisonment on defendants in the context of a revocation hearing where there is no jury and the defendant is not afforded the litany of rights that would be afforded at a criminal trial. These conditions, Haymond argues, severely and adversely impact the criminal defendant. Finally, Haymond asserts that an evaluation of the history of parole and probation systems reveals that Section 3583(k) is fundamentally different from those historically accepted systems, because, for example, violation of parole usually carried a modest sentence of reimprisonment while Section 3583(k) impose a much more severe, five-year minimum sentence.
ARE THE REQUIREMENTS OF SECTION 3583(k) UNCONSTITUTIONAL?
The United States argues that the Court of Appeals incorrectly deemed Section 3583(k) unconstitutional. The United States notes that both the Court of Appeals majority and Haymond acknowledged that the revocation of supervised release is outside the bounds of a “criminal prosecution.” Nevertheless, the United States maintains that the Court of Appeals improperly relied on the Supreme Court’s decision in United States v. Booker, which limits the district court’s ability to impose a mandatory subsequent term of imprisonment, to render Section 3583(k) unconstitutional. In support, the United States contends that the Booker reasoning relied on the Sixth Amendment’s jury right, and the acknowledgement that the jury right does not apply to parole or probation revocation should preclude the application of Booker in this case. Finally, the United States posits that even if the Court agrees with the Court of Appeals, the proper remedy would not be to strike down Section 3583(k) unconstitutional, but rather to require a jury finding as a prerequisite for enforcing the Section.
Haymond argues that striking down Section 3583(k) as unconstitutional is the only proper remedy in this case. First, Haymond asserts that the Court could adhere to the principle of only striking down unconstitutional portions of statutes while upholding the acceptable provisions by striking down the last two sentences of Section 3583(k)—thereby removing the problematic provisions—while still upholding the other pieces of the statute. Furthermore, Haymond contends that striking down the problematic portions of Section 3583(k) would not frustrate Congress’s goal of enacting supervised release programs to assist individuals in their re-acclimation to the community because it would allow courts to still revoke supervised release under different circumstances. Finally, Haymond asserts that the United States’ proposed remedy of empaneling a jury at revocation hearings is ineffective because it is unclear what findings would be required and may violate double jeopardy principles.
ADMINISTRATIVE IMPRACTICALITY VERSUS CONSTITUTIONAL SAFEGUARD
Several States (collectively, the “States”), in support of the United States, argue that a constitutionally-mandated jury system for revocation proceedings would be administratively impractical and counterproductive. The States note that currently there are close to 4.5 million released offenders under State supervision and that roughly sixty-seven percent of these offenders are likely to be rearrested within three years of release. The States maintain that holding revocation proceedings for each rearrested offender, which could amount to millions of proceedings, would be a great burden on a State’s criminal justice system. Further, the States explain, this “would make juries more commonly used after criminal trials than in them.” Additionally, the States contend that the costs of jury proceedings are substantial and that imposing jury revocation proceedings could deplete State coffers. Finally, the States posit that the administrative and financial costs of requiring a jury system for revocation hearings would undermine the States’ interest in returning released offenders to prison “without the burden of a new adversary criminal trial if in fact [the offender] has failed to abide by the conditions of his [release].”
The Due Process Institute (“Institute”), in support of Haymond, counters that the States’ “boiler-plate assertions of practical difficulty” in imposing a jury system for revocation proceedings do not outweigh a criminal defendant’s right to a jury trial. The Institute asserts that the power to impose punishments and determine guilt implicates the core purpose of the criminal jury: to assemble from the community an impartial body of peers to determine whether, based on the facts, the defendant is guilty beyond a reasonable doubt. However, the Institute explains, Section 3583(k) vests this power in a single individual—often the judge who previously adjudicated the defendant’s guilt—to make a determination based on the individual’s own findings of fact. This is problematic, the Institute argues, because, even while acting in their official capacities, judges experience pettiness and hurt feelings. The Institute posits that this is especially true in a revocation proceeding where the defendant has violated the judge’s prior conditions for supervised release, thereby betraying the judge’s sense of trust. Therefore, the Institute contends, a defendant’s Sixth Amendment right to a trial by jury must be observed in a revocation proceeding as a constitutional safeguard to protect the defendant against a potentially arbitrary judge.
RECONCILING STATE SOVEREIGNTY TO ADMINISTER A CRIMINAL JUSTICE SYSTEM WITH PROPORTIONATE AND CONSTITUTIONAL PUNISHMENT
The States argue that important state sovereignty considerations counsel against imposing a jury requirement on revocation hearings. The States claim that the authority to administer a criminal justice system is a fundamental attribute of state sovereignty. The States contend that maintaining this fundamental attribute is critical to encourage States to act as “laboratories” for devising innovative solutions to vexing legal issues. One of the most vexing legal issues, the States maintain, is grappling with the tension between helping released offenders to reform while protecting public safety and general welfare. The States assert that imposing a jury requirement on revocation hearings would jeopardize the States’ ability to balance these interests and to administer their criminal justice systems. Namely, the States suggest that the jury requirement could cause States to reduce the use of determinate sentencing. The States posit that determinate sentencing is often more effective and desirable than indeterminate sentencing, but that a State may wish to abandon determinate sentencing in favor of indeterminate sentencing to avoid the complications of post-sentence jury involvement. Further, the States argue that if a jury requirement were imposed on revocation hearings, the States may wish to increase the top sentencing range for offenses to restore judicial discretion in the sentencing process.
Although States should be able to craft innovative solutions to vexing legal issues, the Social Science and Law Scholars (“Law Scholars”), in support of Haymond, contend that the solutions must be constitutional and proportionate to the offense committed. The Law Scholars acknowledge that a court may revoke a released offender’s supervised release and reincarcerate the offender if the offender violates a supervision condition. Typically, the Law Scholars explain, the reincarceration term varies from one to five years. However, the Law Scholars note that sexual offenders are treated differently—Section 3583(k) imposes a reincarceration term from five years to life. The Law Scholars assert that Congress justifies this disparate treatment of sex offenders based on a fear of “people with deep-seated aberrant sexual disorders that compel criminal behavior.” The Law Scholars claim that this fear is baseless and does not justify trampling on an offender’s constitutional liberties. Indeed, the Law Scholars cite several studies showing that the recidivism rate among released sex offenders is drastically overstated. Therefore, the Law Scholars contend, the heightened sentencing under Section 3583(k) is disproportionate and unjustifiable. The Law Scholars argue that “a claim that high re-offense risk justifies a compromise of constitutional rights must surely rest . . . on a valid assessment of the risk posed by the individual whose rights one proposes to limit.”
- Michael A. Foster, Which Punishment Fits Which Crime?: Supreme Court to Consider Whether Portion of Supervise Release Statute is Unconstitutional, Congressional Research Service (Nov. 27, 2018).
- Connor McDonald, United States v. Haymond, Willamette University (2018).
- Robert McClendon, Supervising Supervised Release: Where the Courts Went Wrong on Revocation and How United States v. Haymond Finally Got it Right, Tulsa Law Review (2018).