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February 25, 2019

Will Haymond argument generate any haymaker questions as SCOTUS takes up supervised release?

Tomorrow the Supreme Court has a day of sentencing arguments scheduled, as the Justices will from counsel in United States v. Haymond and Mont v. United States.  Here are the questions presented and argument previews via SCOTUSblog:

United States v. Haymond Issue: 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.

Mont v. United States Issue: Whether a period of supervised release for one offense is tolled under 18 U.S.C. § 3624(e) during a period of pretrial confinement that upon conviction is credited toward a defendant’s term of imprisonment for another offense.

For hard-core sentencing fans, the Haymond case could be the sleeper of the Term because a major ruling on constitutionally required procedures for revocation of supervised release could have profound implications not only for the federal system, but also potentially for some state systems. 

I doubt that oral argument will provide any big indication of just how big a ruling Haymond could produce, but I will be particular eager to see what the newer Justices might have to say about the kind of judicial factfinding that landed Andre Haymond back in prison for a (mandatory) five years after a judge found by only a "preponderance of the evidence" that he had violated the terms of his supervised release.  I think serious originalists should be troubled by the kinds of procedures used to deprive Haymond of his liberty, but the modern tradition of lax procedures at the "back-end" of sentencing systems is considerable.  I am hoping a number of Justices might take big swings with their questions in Haymond, but lately I am thinking I should not be expecting too much from the Justices.

Some prior related posts:

February 25, 2019 at 05:16 PM | Permalink


As I sort of expected, the argument in Haymond was something that has become rather common in recent terms -- a debate over how you frame the issue.

The government attempted to characterize the current system as a variation on probation/parole -- namely an initial period of incarceration followed by a period of supervision with an implied suspended sentence hanging over the head. Under this theory, the statute at issue merely confines judicial discretion as to the terms under which it executes the suspended sentence, but that the total suspended sentence is implicitly set at the time of the original sentence. Under that view, there is not an Apprendi issue because the judge is not imposing a new or enhanced sentence.

The defendant's view sees an original sentence and maybe an implied maximum sentence under the regular supervised release provision, but sees the add-on mandatory minimum in this case as a new sentence based on the commission of a new offense. As such, before the court can impose this new sentence, it needs a jury finding under Apprendi.

Both view are plausible ways to frame the issue and both are "truthy." But how the majority ends up explaining what the various supervised release provisions do will determine the validity of those provisions. Given that the result will come down to how you frame the issue, I am not sure that the decision will make a "big" difference in the law, although it might result in revisions to how these provisions read in an effort to re-frame what these provisions do.

Posted by: tmm | Feb 26, 2019 4:14:36 PM

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