SCOTUS, via splintered 5-4 ruling, decides that supervised release revocation procedures used in Haymond are unconstitutional

Via a divided opinion thanks to the separate vote of Justice Breyer, the Supreme Court this morning ruled in favor of a federal criminal defendant's claim that the procedures used to revoke his federal supervised release term and send him back to prison was unconstitutional in US v. Haymond, No. 17-1672 (S. Ct. June 26, 2019) (available here).  Here is the vote/opinion break down in the case:

GORSUCH, J., announced the judgment of the Court and delivered an opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. BREYER, J., filed an opinion concurring in the judgment. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., and THOMAS and KAVANAUGH, JJ., joined.

Here is how Justice Gorsuch's lead plurality opinion starts:

Only a jury, acting on proof beyond a reasonable doubt, may take a person’s liberty.  That promise stands as one of the Constitution’s most vital protections against arbitrary government.  Yet in this case a congressional statute compelled a federal judge to send a man to prison for a minimum of five years without empaneling a jury of his peers or requiring the government to prove his guilt beyond a reasonable doubt.  As applied here, we do not hesitate to hold that the statute violates the Fifth and Sixth Amendments.

Because Justice Breyer's fifth vote is essential to the result here, his short concurring opinion demands quoting at length. So:

I agree with much of the dissent, in particular that the role of the judge in a supervised-release proceeding is consistent with traditional parole. See post, at 9–10 (opinion of ALITO, J.).  As 18 U.S.C. §3583 makes clear, Congress did not intend the system of supervised release to differ from parole in this respect. And in light of the potentially destabilizing consequences, I would not transplant the Apprendi line of cases to the supervised-release context.  See post, at 4–5....

Nevertheless, I agree with the plurality that this specific provision of the supervised-release statute, §3583(k), is unconstitutional.  Revocation of supervised release is typically understood as “part of the penalty for the initial offense.”  Johnson v. United States, 529 U. S. 694, 700 (2000).  The consequences that flow from violation of the conditions of supervised release are first and foremost considered sanctions for the defendant’s “breach of trust” — his “failure to follow the court-imposed conditions” that followed his initial conviction — not “for the particular conduct triggering the revocation as if that conduct were being sentenced as new federal criminal conduct.”  United States Sentencing Commission, Guidelines Manual ch. 7, pt. A, intro. 3(b) (Nov. 2018); see post, at 12–13.  Consistent with that view, the consequences for violation of conditions of supervised release under §3583(e), which governs most revocations, are limited by the severity of the original crime of conviction, not the conduct that results in revocation.  See §3583(e)(3) (specifying that a defendant may as a consequence of revocation serve no “more than 5 years in prison if the offense that resulted in the term of supervised release is a class A felony, [no] more than 3 years in prison if . . . a class B felony,” and so on).

Section 3583(k) is difficult to reconcile with this understanding of supervised release.  In particular, three aspects of this provision, considered in combination, lead me to think it is less like ordinary revocation and more like punishment for a new offense, to which the jury right would typically attach.  First, §3583(k) applies only when a defendant commits a discrete set of federal criminal offenses specified in the statute.  Second, §3583(k) takes away the judge’s discretion to decide whether violation of a condition of supervised release should result in imprisonment and for how long.  Third, §3583(k) limits the judge’s discretion in a particular manner: by imposing a mandatory minimum term of imprisonment of “not less than 5 years” upon a judge’s finding that a defendant has “commit[ted] any” listed “criminal offense.”

Taken together, these features of §3583(k) more closely resemble the punishment of new criminal offenses, but without granting a defendant the rights, including the jury right, that attend a new criminal prosecution.  And in an ordinary criminal prosecution, a jury must find facts that trigger a mandatory minimum prison term. Alleyne, 570 U. S., at 103.

Accordingly, I would hold that §3583(k) is unconstitutional and remand for the Court of Appeals to address the question of remedy.  Because this is the course adopted by the plurality, I concur in the judgment.

And here is how Justice Alito's dissent starts:

I do not think that there is a constitutional basis for today’s holding, which is set out in JUSTICE BREYER’s opinion, but it is narrow and has saved our jurisprudence from the consequences of the plurality opinion, which is not based on the original meaning of the Sixth Amendment, is irreconcilable with precedent, and sports rhetoric with potentially revolutionary implications.  The plurality opinion appears to have been carefully crafted for the purpose of laying the groundwork for later decisions of much broader scope.

WOW! I am surprised and disappointed that the Chief Justice and Justices Thomas and Kavanaugh all sign off on Justice Alito's dissent. I thought for sure one or more of them would be inclined to vote with the defendant in this case on at least a narrow ground.  But it seems Justice Gorsuch was so eager to swing for the Fifth and Sixth Amendment fences, he could not get any of these other Justices to stay on his team in this notable case.  I will need a few hours, probably a few days, to figure out just what this means now and for the future of Fifth and Sixth Amendment sentencing jurisprudence.  For now, I will just say WOW again.

UPDATE: I see this new post at Crime & Consequences on this ruling with this adroit title "An Odd 'Supervised Release' Law Bites the Apprendi Dust."