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December 5, 2022

"The Constitutional Limits of Criminal Supervision"

The title of this post is the title of this new article authored by Eric Fish and now available via SSRN. Here is its abstract:

Nearly four million people are under criminal supervision in the United States.  Most are on probation or parole.  They can be sent to prison if a judge concludes that they violated the terms of their supervision.  When that happens, there is no right to a jury trial.  The violation only needs to be proven to a judge by a preponderance of the evidence.  This creates a constitutional puzzle.  In several important cases, the Supreme Court has recognized that the Sixth Amendment right to trial by jury is not limited to the formal elements of criminal statutes.  It applies in any situation where proving a fact to a court triggers additional punishment.  So then why is criminal supervision constitutionally permitted, when it involves judges sending people to prison based on facts not proven to a jury?  Under current doctrine, the answer is surprisingly unclear.  The Court’s 2019 decision in United States v. Haymond raised this issue directly, but failed to provide an answer.

This Article proposes a new solution to this constitutional puzzle: the conditional sentencing theory.  This theory explains how criminal supervision can be made compatible with the Sixth Amendment.  It holds that a criminal sentence can include provisions that change the defendant’s custody status if certain conditions are satisfied.  Such a sentence contains an amount of custody time, an amount of supervision time, an amount of suspended custody time for supervision violations, and a list of acts that trigger violations.  Under this theory, a judge sentencing a person for a supervision violation is not imposing a new punishment.  They are instead implementing the terms of the original sentence, switching someone from supervision to custody based on triggering rules announced at the initial sentencing hearing.

The conditional sentencing theory places two important constitutional limits on criminal supervision, which are not currently recognized.  First, a judge cannot retroactively change a supervision sentence by lengthening it, adding more conditions, or adding more prison time.  Second, a sentence for a supervision violation cannot exceed the statutory maximum for the underlying crime.  Numerous state and federal supervision laws transgress these limitations.  Many state probation laws, for example, let judges extend probation or change its terms at a violation hearing.  In some states, like Wisconsin and Pennsylvania, this process can repeat indefinitely.  The same is true in the federal system of supervised release.  That system lets judges extend supervision unlimited times, keeping supervisees trapped in an endless cycle of new punishments — a life sentence on an installment plan.  The Article closes by arguing more broadly that judges should direct greater constitutional scrutiny at institutions, like criminal supervision, that make incarceration more efficient by circumventing defendants’ rights.

December 5, 2022 at 08:45 PM | Permalink


Here in Fayette County (Lexington), Kentucky, we have a problem with Judges refusing to set bail for defendant's charged with probation violations. Their theory seems to be that the defendant isn't entitled to bail because he has already been convicted of the underlying crime. But Section 16 of the Kentucky Constitution specifically provides that ALL INMATES (except those charged with capital murder, where the proof is great) are entitled to have a bond set to secure their release, pending trial. Moreover, probation violation is itself a substantive crime, where the defendant enjoys a presumption of innocence, despite the fact that he can be convicted by a Judge by a preponderance of the evidence.

Posted by: Jim Gormley | Dec 6, 2022 7:56:09 AM

The Judges' refusal to set bail for those charged with probation violations (including misdemeanor probation violations) causes many serious problems, including the fact that about 40% of the inmates in the Fayette County Detention Center are being held for probation violations.

Posted by: Jim Gormley | Dec 6, 2022 8:14:10 AM

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