Legal Sidebari
Which Punishment Fits Which Crime?:
Supreme Court to Consider Whether Portion
of Supervised Release Statute is
Unconstitutional
November 27, 2018
On October 26, 2018, the Supreme Court granted certiorari in United States v. Haymond—a case that
could change how sex offenders who commit certain additional crimes after their release from prison are
resentenced and invalidate a portion of the applicable federal statute in the process.
At issue is 18 U.S.C. § 3583, which establishes the requirements for imposing a term of “supervised
release” following a federal criminal defendant’s imprisonment. The Supreme Court has referred to
supervised release as “a form of postconfinement monitoring” that the sentencing court oversees. Section
3583 authorizes courts to include a term of supervised release as a part of a defendant’s sentence and
establishes the permissible lengths of supervised release terms based on the severity of the offense of
conviction. The statute also requires the court to order that the defendant “abide by certain conditions”
during the supervised release term, one of which is that the defendant “not commit another Federal, State,
or local crime during the term of supervision.” For violation of this or other conditions imposed by the
court, Section 3583 permits the court to revoke supervised release and reimprison the offender upon a
finding by a preponderance of the evidence—i.e., that it is more likely than not—that a violation has
occurred.
With respect to most violations of supervised release conditions, Section 3583 (1) gives the court
discretion to revoke supervised release and impose a term of reimprisonment within one of several
specified ranges, and (2) defines those ranges by reference to the severity of the original criminal
conviction (as opposed to the nature of the violation). However, for certain defendants—those required to
register as sex offenders under federal law—who violate the terms of their supervised release by
committing additional specified sex offenses, Section 3583(k) requires the court to revoke supervised
release and reimprison the defendant for between five years and life. As a result, Section 3583(k) differs
from the ordinary approach under Section 3583 by (1) eliminating the court’s discretion with respect to
revocation and the minimum reimprisonment term, and (2) tying that reimprisonment term to subsequent
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criminal conduct in violation of the conditions of supervised release (as opposed to the original crime of
conviction).
In a 2017 decision, the United States Court of Appeals for the Tenth Circuit in United States v. Haymond
concluded that these aspects of Section 3583(k) rendered the provision unconstitutional. Specifically, the
appellate court held that Section 3583(k) “strips the sentencing judge of discretion to impose punishment”
within the statutory range of punishment that would otherwise apply to the original crime of conviction
and “imposes heightened punishment on sex offenders” based on “new conduct for which they have not
been convicted by a jury beyond a reasonable doubt.” The Supreme Court has now agreed to review the
Tenth Circuit’s holding in order to determine whether it, and the attendant invalidation of the relevant
portions of Section 3583(k), were in error.
The dispute at issue in Haymond arose after a jury convicted Andre Haymond of a child pornography
offense carrrying a statutory sentencing range of between 0 and 10 years’ imprisonment. In turn, a federal
district court sentenced the defendant to a term of incarceration followed by a supervised release term.
Haymond completed his prison term, but during the term of his supervised release, probation officers
discovered thumbnail images in his phone’s gallery cache that were identified as child pornography.
Based on this discovery, the court that originally sentenced Haymond found by a preponderance of the
evidence that he had possessed child pornography in violation of the supervised release condition that he
not commit another federal, state, or local crime. Because possession of child pornography is one of the
enumerated offenses in Section 3583(k) that triggers mandatory supervised release revocation and
reimprisonment for a minimum of five additional years, the court sentenced Haymond to five years’
reincarceration, to be followed by five more years of supervised release.
On appeal, the Tenth Circuit determined that the provision in Section 3583(k) under which Haymond was
sentenced to reimprisonment violated the Fifth and Sixth Amendments to the U.S. Constitution. Among
other guarantees, those amendments protect a criminal defendant’s right (1) to have each element of the
criminal offense with which he is charged be submitted to a jury and proved beyond a reasonable doubt,
and (2) to be free from multiple prosecutions and duplicative punishment for the same conduct
(commonly referred to as “double jeopardy”).
The Tenth Circuit based its holding on two separate lines of Supreme Court precedents. First, in a series
of cases reaching back to the late 1990s, the Supreme Court has clarified that, although judges (rather
than juries) can ordinarily determine the sentences of those convicted of federal crimes and base certain
sentencing decisions on facts they find by only a preponderance of the evidence, when a mandatory
“increase in a defendant’s authorized punishment [is made] contingent on the finding of a fact, that fact . .
. must be found by a jury beyond a reasonable doubt.” In other words, when the existence of a fact means
that a defendant must be sentenced to a longer term in prison than would otherwise be required, that fact
must be proven to a jury beyond a reasonable doubt in order to comport with the Constitution. In this
vein, in the landmark 2005 ruling in United States v. Booker, the Court held that the United States
Sentencing Guidelines—which at the time could subject criminal defendants to mandatory, heightened
sentencing ranges based on facts found by a judge by a preponderance of the evidence—ran afoul of the
Constitution.
Second, the Supreme Court has elucidated the nature and constitutional limitations of supervised release
revocation decisions. On one hand, the Court has recognized that because the Sixth Amendment applies
only to “criminal prosecutions,” and revocation of supervised release “is not part of a criminal
prosecution,” a defendant accused of violating at least certain conditions of his supervised release has “no
right to a jury determination of the facts constituting that violation.” Many conditions of supervised
release, the violation of which may subject a released offender to reimprisonment, are not even criminal
in nature. (For example, a court may impose a condition that a defendant submit to a search of his person
and property under certain circumstances). At the same time, however, the Court has suggested that
“serious constitutional questions” might arise if revocation and reimprisonment are used to punish the
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violation of a condition of supervised release itself. Specifically, treating postrevocation penalties in this
way would raise the specter that they (1) conflict with the Constitution’s jury and reasonable doubt
requirements by allowing violations to be found by a judge based on a lower standard of proof, and (2)
run afoul of the Constitution’s double jeopardy prohibition because the conduct triggering revocation can
be separately prosecuted. According to the Supreme Court, “[t]reating postrevocation sanctions as part of
the penalty for the initial offense . . . avoids these difficulties.”
Applying the above precedents, the lower court in Haymond viewed Section 3583(k)’s mandate that a
court impose a five-year minimum reimprisonment term upon the judge’s finding that a particular crime
was committed during the supervised release term as indistinguishable from the sentencing range
increases based on judge-found facts held impermissible in Booker. Although the Constitution’s jury and
reasonable doubt requirements ordinarily do not apply to a finding that a defendant has violated a
condition of supervised release, the Haymond court saw the five-year minimum term of imprisonment as
retroactively imposing a higher mandatory sentencing floor than would have otherwise been available for
the original crime of conviction, which carried no minimum imprisonment term. In the court’s view,
under Booker, the Fifth and Sixth Amendments prohibited the application of that five-year minimum
based only on a judge’s finding by a preponderance of the evidence—rather than a jury’s finding beyond
a reasonable doubt—that the subsequent criminal violation occurred. The difficulty in Haymond is that
the judge-found fact at issue—commission of an additional crime in violation of Haymond’s terms of
supervised release—occurred subsequent to the imposition of Haymond’s sentence for his original crime
of conviction, rendering the supervised release finding and mandatory reimprisonment term distinct from
the mandatory sentencing range increases that the Supreme Court viewed as problematic in Booker. The
government emphasized this distinction in its petition for certiorari in Haymond.
The Haymond court also held that the five-year mandatory minimum provision of Section 3583(k) was
unconstitutional for another reason: according to the Tenth Circuit, because the provision makes certain
subsequent offenses that violate supervised release conditions—rather than the original offense of
conviction—the trigger for a heightened term of reimprisonment, that portion of Section 3583(k) is at
odds with the Supreme Court’s admonition that postrevocation sanctions should be treated “as part of the
penalty for the initial offense” to avoid constitutional difficulty. More specifically, the court in Haymond
concluded that tying an increased penalty to specific subsequent offenses in this way raises the same Fifth
and Sixth Amendment problems identified in Booker—i.e., that commission of the subsequent offense is
not found by a jury beyond a reasonable doubt—while also running afoul of the Fifth Amendment’s
double jeopardy prohibition. In its petition for certiorari seeking review of this aspect of the Tenth
Circuit’s ruling, however, the government maintained that considering the severity of a supervised-release
condition violation in imposing reimprisonment is permissible and does not transform the reimprisonment
into a new criminal prosecution.
The Supreme Court’s ultimate decision in Haymond could have significant implications going
forward for the over 16,000 federal inmates currently incarcerated and the nearly 9,000 former
federal inmates currently serving terms of supervised release for sex offenses, as well as for how
Congress crafts laws concerning supervised release. If the Supreme Court agrees with the Tenth
Circuit’s conclusions, and agrees with its remedy, revocation and terms of reimprisonment would
be limited to the provisions of Section 3583(e), which establish a five-year ceiling for the most
serious felonies. Nevertheless, according to Haymond, Congress could still set a higher
discretionary term of reimprisonment based on the severity of particular crimes of conviction if it
so chooses—i.e., Congress could say that conviction for possession of child pornography
specifically may permit a court to reincarcerate a defendant for a lengthier term upon a finding
that the defendant has violated a condition of supervised release. But imposing higher penalties
based on a subsequent criminal condition violation itself, as Section 3583(k) currently does,
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would not be permissible without a jury finding. By contrast, should the Court reject the Tenth
Circuit’s conclusions in Haymond, it would be an affirmation that Section 3583(k) and any
future legislative provisions like it can limit judicial discretion regarding resentencing based on
specific criminal violations of supervised release conditions without running afoul of the Fifth
and Sixth Amendments. The Court has yet to schedule oral argument in Haymond, but the Court
will likely set the argument for early 2019 with the potential for a decision several months
thereafter.
Author Information
Michael A. Foster
Legislative Attorney
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