On June 26, 2019, the U.S. Supreme Court decided United States v. Haymond, which addresses the applicability of the Sixth Amendment's jury trial right in supervised release revocation proceedings. United States v. Haymond, 139 S. Ct. 2369 (2010). Writing for the plurality, Justice Neil Gorsuch begins his opinion in Haymond with these lofty words: “Only a jury acting on proof beyond a reasonable doubt may take a person's liberty.” The problem with those words is that they are obviously untrue. Judges incarcerate defendants for failing to abide by conditions of bail without impaneling juries. Indeed, they regularly detain defendants as flight risks or dangers to the community after judicial factfinding on proof less than beyond a reasonable doubt. Similarly, judges incarcerate probationers for probation violations without juries. And parole authorities return parolees to prison for parole violations without juries. If a law student wrote on a criminal procedure exam what Justice Gorsuch wrote at the outset of Haymond, she would fail.

To state the obvious, Haymond deserves a close look.

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In 2010, a jury convicted Andre Haymond of possessing child pornography. The maximum sentence for the crime was 10 years' imprisonment and lifetime supervised release. Haymond was sentence to 38 months' imprisonment and 10 years' supervised release. After completing his prison term, Haymond encountered difficulty on supervised release: an unannounced search of his computer and cellphone revealed 59 images that appeared to be child pornography, and the government moved to revoke his supervision and return him to prison.

What made Haymond's case unusual was that, under 18 U.S.C. §3583(k), a judge who finds by a preponderance of the evidence that a sex offender on supervised release has possessed child pornography must impose an additional prison term of at least five years and up to life imprisonment. (Generally, a prison sentence is not mandatory for a violation of supervised release, and the sentence cannot exceed two years for a class C or D felony, which includes Haymond's crime of conviction. See 18 U.S.C. §3583(e)(3). One other provision carries a mandatory prison sentence for a supervised release violation, but it is not nearly as harsh. 18 U.S.C. §3583(g) requires a defendant to “serve a term of imprisonment not to exceed the maximum term of imprisonment authorized under subsection (e)(3)” if he violates certain conditions of supervised release relating to firearms possession and drug use.) By a preponderance of the evidence, the district court found that Haymond had knowingly possessed 13 child pornographic images, and, on that basis, sentenced him to the mandatory minimum additional prison term of five years.

Does the Sixth Amendment permit a mandatory five-year sentence for Haymond's violation of supervisory release without a jury having found beyond a reasonable doubt that he had knowingly possessed child pornography? That was the question on which the Supreme Court granted certiorari in Haymond.

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To understand Haymond requires a brief review of the Supreme Court's Apprendi jurisprudence. See Apprendi v. New Jersey, 530 U.S. 466 (2000) and its progeny: Ring v. Arizona, 536 U.S. 584 (2002); Blakely v. Washington, 542 U.S. 296 (2004); Cunningham v. California, 549 U.S. 270 (2007); and United States v. Booker, 543 U.S. 220 (2005). The Apprendi rule is simply stated: A defendant convicted of a crime may not be exposed to a greater punishment than that authorized by the jury's guilty verdict. (The court has recognized two exceptions to the rule: (1) a jury need not find the fact of a defendant's prior conviction for sentence enhancement purposes and (2) it need not find a fact that permits consecutive sentences to be imposed. See Almendarez-Torres v. United States, 523 U.S. 224 (1998) (prior convictions); Oregon v. Ice, 555 U.S. 160 (2009) (consecutive sentence).) For example, a statute that carries a maximum sentence of 15 years' imprisonment but permits the judge to sentence the defendant to more than 10 years only if she finds to a preponderance of the evidence that the defendant possessed a gun during the commission of the crime fails Apprendi. A jury must find the aggravating factor (possession of a gun) beyond a reasonable doubt before the enhanced sentence may be imposed.

In Alleyne, decided in 2013, the court held that Apprendi's teaching applies “with equal force to facts increasing the mandatory minimum sentence” as it does to facts increasing the statutory maximum penalty. 570 U.S. 99 (2013). For example, if a statute provides for a 15‑year maximum sentence but requires a term of at least five years if the defendant possessed a gun during the commission of the crime, the jury must find the aggravating fact beyond a reasonable doubt for the mandatory minimum to apply.

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Which brings us back to Haymond. Writing for a plurality that included Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, Justice Gorsuch concluded that §3583(k) violated Alleyne. Haymond faced a mandatory minimum term of five years for knowingly possessing child pornography, and a judge had made that finding to a preponderance of the evidence, not a jury beyond a reasonable doubt. Justice Stephen Breyer concurred in the result, making five votes in Haymond's favor.

In ruling for Haymond, Justice Gorsuch brushed aside several competing arguments. First, he rejected the argument that the Sixth Amendment jury trial right applies only to “criminal prosecutions,” and not to “post judgment sentencing-administrative proceedings,” such as supervised release. An accused's “final sentence,” Justice Gorsuch opined, “includes any supervised release sentence he may receive.” Second, he rejected the argument that Haymond's supervised release sentence was fully authorized by the jury's verdict. Haymond's five-year mandatory minimum sentence came into play only as a result of additional factfinding, and a judge, not a jury, found the facts. Finally, he rejected an attempt to compare supervised release with parole. Under a parole system, a violator can be sentenced only to the remaining prison term authorized by his original crime of conviction. By contrast, §3583(k) exposes a defendant to an additional prison term well beyond that authorized by the jury's verdict based on facts found by the judge to a preponderance of the evidence.

Juries may be inconvenient, Justice Gorsuch observed, but they are “the price that all free nations must pay for their liberty in more substantial matters.” 139 S. Ct. at 2384, quoting 4 Blackstone 344.

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What should one make of Haymond?

(1) Section 3583(k), like many provisions that apply to sex offenders, is draconian. It permits a defendant on supervised release to be sentenced to life imprisonment on the basis of factual findings made by a judge to a preponderance of the evidence. In his Haymond dissent, Justice Samuel Alito recognized that a life sentence would be “very harsh,” but argued that “[i]f the Constitution restricts the length of additional imprisonment that may be imposed on a violation of supervised release, the relevant provision is the Eighth Amendment, not the Sixth.” The problem with that argument is that the court's Eighth Amendment jurisprudence is feeble. See, e.g., Hutto v. Davis, 454 U.S. 370 (1982) (Eighth Amendment not violated where defendant sentenced to 40 years for possessing with intent to distribute nine ounces of marijuana). As a result, banking on the Eighth Amendment to restrict §3583(k) is quixotic. Justice Breyer may have it right: “§3583(k) more closely resemble[s] the punishment [for] a new criminal offense,” so that granting a defendant trial rights seems fair.

(2) The real question, however, is whether Haymond is limited to §3583(k) or applies to all supervised release proceedings. To borrow Justice Alito's word, the latter result would be revolutionary. Consider this hypothetical. A defendant is sentenced to 10 years' imprisonment, the maximum sentence for his crime, and three years' supervised release. The government moves to revoke the defendant's supervised release for failure to report to a required employment training program. If the court finds a violation, can the defendant be sentenced to an additional term of three years' imprisonment under §3583(e)? Must a jury be impaneled? (Note, the sentence here is discretionary, not mandatory as in Haymond.)

One can rephrase the question this way: If Haymond is governed by Alleyne, is our hypothetical governed by Apprendi? Justice Gorsuch left that question open in Haymond, but his opinion all but answered it. (“we need not address the constitutionality of [§3583(k)'s] effect on [Haymond's] maximum sentence under Apprendi” and “we do not pass judgment … on §3583(e)'s consistency with Apprendi”). For the plurality, the maximum sentence authorized by the jury's verdict is the 10 years that the defendant in our hypothetical served before his release to supervision. Any prison term beyond that cannot be imposed without someone finding a new fact—that the defendant failed to attend the employment training program. And according to the plurality, that someone must be a jury.

That is the logic of the plurality opinion, if not its holding. As Justice Alito put it, the plurality opinion “appears to have been carefully crafted for the purpose of laying the ground work for later decisions of much broader scope.”

(3) How much broader? In our hypothetical, the defendant was originally sentenced to the maximum prison term authorized by the statute (10 years). Had he been sentenced to, say, 6 years, the Apprendi problem presumably would not exist. Six (the original term) plus three (the supervised release term) is less than ten (the maximum prison sentence authorized by the jury's verdict), so that a three-year supervised release sentence would not violate Apprendi. Justice Gorsuch says as much. See 139 S. Ct. at 2373. If that is so, expanding Haymond may not be revolutionary. Most federal defendants are not sentenced to anywhere close to the statutory maximum, and therefore most would not have jury trial rights in supervised release proceedings, even if Haymond were extended.

(4) Supervised release was created in the 1980s when most jurisdictions, including the federal system, moved from indeterminate to determinate sentences. Under an indeterminate sentencing scheme, a defendant could be sentenced to, say, 5 to 15 years' imprisonment and be eligible for parole release after serving his minimum term (5 years). If released, the defendant would be on parole for the remainder of his sentence (10 years). And if he violated parole, he could be returned to prison for up to the time left on his sentence (10 years less his time on the street). Thus, in an indeterminate sentencing regime, there cannot be an Apprendi issue at a parole release proceeding. A parolee cannot serve a total sentence greater than that authorized by the trial jury's verdict.

With the change to determinate sentences, parole has been abolished and supervised release added to allow for post-prison oversight. No longer is the period of supervision a residual portion of the defendant's prison term (10 of the 15 years). Rather, supervised release comes after the defendant's prison term is completed. That is the rub. Determinate sentences create the potential for Apprendi issues for defendants whose original sentence was at, or close to, the statutory maximum and who violate their supervised release.

(5) It bears note that there is an easy legislative fix to this problem. In our hypothetical, the legislature could increase the maximum sentence for the crime from 10 years to 13 years and provide that the last three years of the sentence may be served on supervised release. Under such a provision, a judge who believes that a defendant should spend 7 years in prison would sentence him to 10 years with the last three on supervised release. If the defendant violated his supervised release, he could be returned to prison for the time remaining on his sentence. With this legislative fix, presto, the Apprendi problem disappears. (The legislative fix is not perfect. Section 3583(e) provides that a court may revoke supervised release and require the defendant to serve in prison all or part of the supervised release period “without credit for time previously served on post-release supervision.” The quoted words have the potential to create an Apprendi issue.)

That the Apprendi problem can be cured so easily points to a fundamental flaw in Apprendi. To borrow a sentence from Justice O'Connor's dissent in Apprendi, one wonders “why the Constitution would require a state legislature to follow such a meaningless and formalistic difference in drafting its criminal statutes.”

(6) How broadly will courts interpret Haymond? The general rule, first enunciated in Marks v. United States in 1977, is that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those members who concurred in the judgments on the narrowest grounds.” Marks v. United States, 430 U.S. 188 (1977). That means Justice Breyer's concurring opinion should control, and he makes it clear that he “would not transplant the Apprendi line of cases to the supervised-release context.” Section 3583(k), for him, is unique because of its harsh consequence. So interpreted, Haymond may have little practical effect. Because §3583(k) proceedings are rare, Haymond may turn out to be like “a restricted railroad ticket, good for this one day and train only,” at least until the Supreme Court speaks again. See Richard Re, “On 'A Ticket Good For A Day Only,'” 16 Green Bag 2d 155 (2013).

(7) The lower courts will have to struggle with one other question in Haymond's wake: if the Sixth Amendment requires a jury trial in a supervised release proceeding, what other rights apply? Specifically, does the Sixth Amendment's Confrontation Clause apply? Until now, the Circuit courts have held that the right of confrontation is inapplicable in supervised release revocation proceedings because such proceedings are “not a stage of a criminal prosecution,” as the Second Circuit has put it. United States v. Ojudun, 915 F.3d 875, 888 (2d Cir. 2019); see also Fed. R. Crim. Pro. 32.1(b)(2)(C). Hearsay that bears substantial guarantees of trustworthiness has generally been admitted. See, e.g., United States v. Kelley, 446 F.3d 688 (7th Cir. 2006). Haymond could change that. If the jury trial right applies to a supervised release provision, the right to confrontation seems sure to follow.

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Justice Gorsuch's opinion in Haymond is a paean to the Sixth Amendment's jury trial right. Beside the opening sentence, there is this: “the jury system isn't designed to promote efficiency but to protect liberty.” And this: the jury “stands as one of the Constitution's most vital protections against arbitrary government.” And this: the jury system seeks “to preserve the people's authority over [the] judicial functions.” Nowhere mentioned is the inconvenient fact that 97 percent of all federal criminal cases are resolved by guilty pleas—that criminal trials have all but vanished.

Among the principal reasons that we try so few cases is that we punish criminal defendants who have the temerity to go to trial. We exact a trial penalty on those convicted. Nat'l Ass'n of Crim. Defense Lawyers, The Trial Penalty: The Sixth Amendment Right to Trial (2018). In Bordenkircher v. Hayes, the Supreme Court approved that practice, announcing that “in the give and take of plea bargaining, there is no … element of retaliation so long as the accused is free to accept or reject the prosecution's offer.” Bordenkircher v. Hayes, 434 U.S. 357 (1978). Which is to say, coercion is permissible as long as the defendant is aware of it.

Surely, it is time to come to the jury's rescue. Lofty rhetoric will not do. Nor will Apprendi, which had done nothing to increase jury trials. Our founding fathers would be dismayed to learn that “criminal justice today is for the most part a system of pleas, not a system of trials,” as Justice Kennedy put it shortly before his retirement. See Lafler v. Cooper, 566 U.S. 156 (2012). That is the current reality, and it should be cause for grave concern.

Paul Shechtman is a partner at Bracewell in New York and teaches evidence and criminal procedure at Columbia Law School.