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March 30, 2019

Student SCOTUS preview part three: mapping out likely votes after oral argument in US v. Haymond

6a00d83451574769e2022ad3c272a1200b-320wiI noted here back in 2017 an interesting opinion in US v. Haymond where a Tenth Circuit panel declared unconstitutional the procedures used for revocation of a sex offender's supervised release.  The Supreme Court also found the case interesting because, as reported here, the Justices in 2018 accepted the petition for certiorari filed by the federal government.  The SCOTUSblog page on Haymond has links to all the briefing.

As reported in this prior post, I have a great student, Jim McGibbon, who is drafting a series of posts on the Haymond case.  Oral argument took place last month, and Jim was there for all the action.  Following up on his introductory post, and his second post inspired by the briefing in the case, he is working on a few posts on the Justices' likely votes informed by the argument.  Here is the start of his efforts:

Oral argument for United States v. Haymond is completed and the case has been submitted.  Amy Howe at SCOTUSblog observed after oral argument that the Court seems “poised to rule for [Haymond] in dispute over constitutionality of sex-offender law."  I predict that United States v. Haymond will be decided 6-3 in favor of Mr. Haymond.  This post will analyze the predicted majority and the next post will give a breakdown of the predicted dissent.

Locks

Justice Sotomayor

Justice Sotomayor may have more than tipped her hand when she opined during oral argument that to compare supervised release with parole is “to compare apples and oranges.”  If still not convinced, consider that she has stated in Alleyne v. United States, 570 U.S. 99 (2013), that “Apprendi [is] firmly rooted in our jurisprudence.”   Not so subtly did Justice Sotomayor lay the cards on the table, when she averred during oral argument that she had a “due process concern as well as a Sixth Amendment concern” with the procedures applicable in Haymond.  The government did little to propitiate Sotomayor at oral argument, and it appears safe to say that Sotomayor will not break rank from her past holdings.

Justice Thomas

Justice Thomas wrote the concurring opinion in Apprendi v. New Jersey.  He asserted that “if the legislature defines some core crime and then provides for increasing the punishment of that crime upon a finding of some aggravating fact of whatever sort, including the fact of a prior conviction — the core crime and the aggravating fact together constitute an aggravated crime.”  Here, the 10th Circuit convicted Haymond of a violation of 3583(k) and as a result, he was subsequently exposed to “greater and additional punishment” without a jury.  Even though Justice Thomas may not believe in stare decisis and even though he did not speak during oral argument, it would seem reasonable to assume that he believes that 3583(k) is a sentencing enhancement of a sort that is based on facts that need to be submitted to a jury and proved beyond a reasonable doubt. To boot, Justice Thomas was in the majority in Blakely v. Washington, 542 U.S. 296 (2004), and Alleyne v. United States, 133 S. Ct. 2151 (2013) both cases extending the reach of the procedural rights recognized in Apprendi.

Likely

Justice Ginsburg

Justice Ginsburg is a soldier of criminal procedural rights as she joined the ranks of the majority in Apprendi, Blakely, and Alleyne, which all affirmed Sixth Amendment and related procedural due process rights for the criminal defendant.  And in the Haymond oral argument, Justice Ginsburg may have revealed her vote when she intimated that the imposition of 3583(k) requires a “factual finding.”  She also voiced more concern over the remedy that the defendant was seeking than the merits of the argument, which although is not conclusive, is suggestive.  But, of course, Justice Ginsburg was the key swing vote that created the advisory guideline remedy in Booker, and see authored the Court opinion limiting the reach of the Sixth Amendment in Oregon vIce, 555 U.S. 160 (2009).

Justice Kagan

Justice Kagan seems quite likely to hold for the defendant.  She was among the majority in Alleyne, and during oral argument in Haymond she also resisted the government's efforts to compare supervised release to parole.  More generally, in a variety of setting for a variety of criminal defendants, Justice Kagan has been a fairly consistent voice and vote for expanding procedural rights.  It is hard to think of too many cases in which Justice Kagan has been less willing to recognize expanded constitutional rights than her colleagues. 

On the Bubble
Justice Gorsuch and Justice Kavanaugh

Justice Kavanaugh and Justice Gorsuch do not have extensive enough records as Supreme Court Justices regarding Sixth Amendment or other procedural due process rights to predict with any confidence how they will vote, which is why I have them as on the bubble.  Notably, last year Justice Gorsuch was a key swing vote siding with the more liberal justices in a case where the Court held that a federal statute defining a "crime of violence" was unconstitutionally vague. See Sessions v. Dimaya, 138 S. Ct. 1204 (2018). This case seems to suggest that Justice Gorsuch is not disinclined to strike down federal statutes even to benefit criminal offenders.  Notably, during oral argument, Justice Gorsuch also resisted the government’s contention that supervised release and parole were similar, and he did not question the defendant’s counsel at all during oral argument.

Justice Kavanaugh questioned both sides during the argument in Haymond, and he focused on the intricacies of the applicable statutes and a possible remedy.  Notably, while serving on the DC Circuit, in 2015 then-Judge Kavanuagh issued a notable statement in case involving a sentence enhanced on the basis of "acquitted conduct" (available here) that included the assertion that "[a]llowing judges to rely on acquitted or uncharged conduct to impose higher sentences than they otherwise would impose seems a dubious infringement of the rights to due process and a jury trial."   Given that statement, though Justice Kavanaugh could be a wild card here, I predict that he sides with the defendant.

Up next, the breakdown of the predicted dissenters.

Prior related posts:

March 30, 2019 at 11:41 AM | Permalink

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