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May 19, 2019

Student SCOTUS preview part four: more vote predicting after oral argument in US v. Haymond

6a00d83451574769e201b7c9134b4d970b-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 feds.  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 has been drafting a series of posts on the Haymond case.  Oral argument took place back in February, 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 has now a pair of posts on the Justices' likely votes informed by the argument.  The start of his efforts (covering six likely or possible votes for the defendants) can be found in this post, and here is his analysis of likely votes for the government:

While we anxiously await the written decision in United States v. Haymond, here is an accounting of the Justices that seem most likely to vote for the government as it seeks to defend the constitutionality of the procedures used to revoke Haymond's supervised release under 18 U.S.C. § 3583(k).

Chief Justice Roberts

The Chief Justice may see himself as an umpire, but at oral argument he was a pitcher throwing both the government and the defendant curve balls. He stated to the government that “simply because the jury’s sentence includes [the sentence authorized by 3583(e)] doesn’t mean that everything that follows is necessarily constitutional.”  But he also questioned the defense’s arguments that 3583(k) is unconstitutional because their claims could undermine the workability of the entire statute and the supervised release/revocation system.

Based on his statements at oral argument, it is difficult to predict the Chief Justice's vote.  But the Chief Justice authored a dissent in Alleyne v. United States, a case which held that any fact increasing a mandatory minimum sentence must be found by a jury beyond a reasonable doubt.  The Chief Justice disagreed with the majority’s broad reading of the Sixth Amendment in Alleyne based on his view that a sentencing factor that increases an applicable minimum sentence (but not the maximum) is not an element of the crime that needed to be submitted to a jury beyond a reasonable doubt.  The Chief Justice may similarly resist a broad reading of the Sixth Amendment for Haymond, perhaps deciding a revocation finding under 3583(k) is not part of a “criminal prosecution,” but just part of a postconviction hearing, and thus not within the ambit of proceedings the Framers envisioned for Sixth Amendment protection.

Justice Alito

Justice Alito at oral argument was the MVP for the  government (as Justice Sotomayor was for the defendant).  During oral argument, Justice Alito declared that the remedy proposed by the defendant may “bring down the entire system of supervised release.”  He also expressed his “trouble” with the “whether we should overrule an enormous amount of precedent and wipe out probation and parole or decide this novel question [of whether a reimprisonment term can exceed the period of conditional liberty in a supervised release term].”  Perhaps, Justice Alito thinks the solution in Haymond is to heavily rely on Morrissey v. Brewer, which ruled parole revocation proceedings do not require elaborate procedures, without addressing broader questions about the operation of supervised release and its revocation. 

Notably, Justice Alito's dissent in Alleyne not only admonished the majority’s willingness to eschew stare decisis, but also expressed disapproval with Apprendi v. New Jersey, the landmark case expanding defendants' Fifth and Sixth Amendment procedural rights concerning findings with sentencing impact.  Alleyne and Apprendi are critical cases for Haymond for both his due process and jury trial claims, and Justice Alito seems unlikely to find either kind of claim persuasive.  Justice Alito, whether seen as a textualist or an originalist, clearly resists legal change in the favor of criminal defendants.  

Justice Breyer

Justice Breyer will probably vote for the government, although it is not a foregone conclusion given his history with cases like Apprendi and Alleyne.  Justice Breyer was initially vexed with the procedural rights that the Supreme Court set forth in Apprendi, calling that decision “impractical.”  Back in 2000, he questioned why the majority  blessed a “sentencing system in which judges have discretion to find sentencing-related factors,” but then viewed for constitutional purposes “sentencing statutes” that increased the maximum sentence “differently.”  In Apprendi, Justice Breyer expressed concern with the possibility of “special postverdict sentencing juries” describing them as “not worth their administrative costs,” and a ruling for the defendant in Haymond could encourage the use of such a procedure.  

Thirteen years after Apprendi, however, Justice Breyer pulled a volte-face when providing a key fifth vote in Alleyne for extending the rights set forth in Apprendi.  This may mean that Justice Breyer now sees that extending jury trial rights can be sometimes justified; indeed, at the Haymond oral argument, Justice Breyer called himself a “good follower of Apprendi.”  As with any uncertain Justice, the Haymond case may boil down to whether supervised release is viewed as just a variation on parole.  If Justice Breyer believes that parole is sufficiently similar to supervised release, then Haymond is not entitled to the “full panoply of rights,” according to Morrissey v. Brewer

Prior related posts:

May 19, 2019 at 10:58 AM | Permalink

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