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February 27, 2023

"Revocation at the Founding"

The title of this post is the title of this notable new paper authored by Jacob Schuman and now available via SSRN. Here is its abstract:

The Supreme Court is divided over the constitutional law of community supervision.  The justices disagree about the nature of liberty under supervision, the rights that apply when the government revokes supervision as punishment for violations, and the relationship between parole, probation, and supervised release.  These divisions came to a head in 2019’s United States v. Haymond, where the justices split 4-1-4 on whether the right to a jury trial applies to revocation of supervised release.  Their dispute focused on the original understanding of the jury right at the time the Constitution was ratified.

This Article aims to settle the debate over the law of revocation at the Founding. In the late 18th-century United States, there was a close legal analogue to modern community supervision: the recognizance to keep the peace or for good behavior.  Like probation, parole, and supervised release, the recognizance was a term of conditional liberty imposed as part of the punishment for a crime, providing surveillance and reporting on the defendant’s behavior, and with violations punishable by imprisonment.  Given these similarities, the best way to determine if the original understanding of the jury right would apply to revocation of community supervision is to ask whether the common law required a jury for punishing violations of a recognizance.

Fortunately, Founding Era legal authorities make the answer to that question clear: Yes, at the time the Constitution was ratified, punishing recognizance violations required a jury trial.  This requirement only disappeared during the 19th century with the development of probation and parole, which changed the structure of community supervision from an additional penalty into a delayed punishment.  Because supervised release is structured as a penalty, not a delay, the original understanding of the jury right would apply to revocation of supervised release, even if not to probation or parole.  The law of revocation at the Founding preserves lost constitutional rights that deserve modern reconsideration and renewal.

February 27, 2023 at 12:51 PM | Permalink


What is clear is that state and federal governments have entirely too much authority. The Sixth Amendment---as well as other amendments in the Bill of Rights--- were designed, at least in part, to be a check against that power. It's sad to see how these rights have eroded under the leadership of both parties.

Posted by: Eric A. Hicks | Feb 28, 2023 7:49:10 AM

One thing that offends me is that the right to confront and cross examine one's accusers ends with the verdict. I have seen several defendants have their drug quantity at sentencing increased dramatically by witnesses who did not testify at trial, and who they and their attorneys never get to cross examine at the sentencing hearing (although some witnesses do appear live at sentencing and are cross examined). The Confrontation clause needs to be expanded to include sentencing information, like drug quantity.

Posted by: Jim Gormley | Feb 28, 2023 9:50:50 AM

I once saw an inmate whose Supervised Release had been revoked (and he had been returned to prison 3 times) three times. He violated many prison rules inside, and spent the last 3 months of his third revocation sentence, locked down 23+ hours per day in SHU. The Disciplinary Hearing Officer ran out of legitimate sanctions, so he ordered staff to take the inmate's mattress each morning after breakfast and not return it until 10 p.m., for sleeping. The inmate had to sit on his concrete bunk without a mattress all day long. BOP staff ended up regretting the DHO's special sanction, because the inmate refused to cuff up after breakfast, so that staff could open his cell door to take the mattress. Staff had to suit up in padded, protective gear and helmets, to open the door and forcibly take the mattress each morning. Because the inmate's third revocation was 1 year, he earned no good conduct time that the DHO could take away.

Posted by: Jim Gormley | Feb 28, 2023 9:57:34 AM

Jim Gormley --

The guy sounds like a complete a**hole. Did he ever consider acting like a normal person?

Posted by: Bill Otis | Mar 2, 2023 2:52:25 AM

Bill Otis: I agree with your assessment of that defendant/inmate. For a 26-year old, he was grossly immature, perhaps because he started drinking and using drugs at 10 or 11 years old. One thing i learned about in prison was that many people's emotional and intellectual growth stops at the age when they began using a lot of drugs and alcohol. Thus, we end up with men's bodies being run by the minds of children, and coming off as immature a**holes!
The funniest part for him was that Christmas that year was on a Thursday, and his sentence didn't end until Friday the 26th, so he was going to miss Christmas with his family. But then President Bush gave Federal employees a 4-day weekend by making that Friday a holiday, so this defendant got out on Wednesday, Christmas Eve. On Tuesday about 2:30 a.m., a SSHU guard came and kicked the defendant's steel door with his steel-toed boot, to wake him up with a demand for a urine test for drugs. He told the guard to take his little plastic cup and stick it. The guard threatened to write him an incident report for refusing to obey an order and give a urine sample. The inmate told the guard to go ahead, because it wouldn't matter, since he had no good time to take, and would be released from prison on Wednesday in any event.

Posted by: Jim Gormley | Mar 2, 2023 10:38:05 PM

Jim Gormley --

The main reason I want to keep drugs illegal is the devastating effect they have, particularly on children. Not once in the decades I've been around have I heard of someone's life being lifted up by coke, smack, Ecstasy or any of the rest of it. Drugs are bad news (when they aren't lethal news).

Posted by: Bill Otis | Mar 3, 2023 1:30:11 AM

Bill, there are many people who have written about the ways that psychedelics, including MDMA (the active ingredient in ecstasy) have lifted up their lives. Michael Pollan has two books out about the subject (How to Change Your Mind and This Is Your Mind on Plants). I recommend you check them out!

Posted by: Curious | Mar 3, 2023 8:41:31 AM

Curious --

There might be instances in which illegal drugs have improved a person's life. They are massively dwarfed by the thousands upon thousands of cases in which such drugs have produced gross mental and physical injury and death. In each of the last two years, the country has lost over 100,000 souls to overdoses. The enormous toll drugs exact is the reason that, except for pot, there has and remains overwhelming bipartisan agreement that drugs should remain illegal -- an agreement that now has lasted more than 50 years.

And no, Timothy Leary -- the late Timothy Leary -- does not know better.

Posted by: Bill Otis | Mar 4, 2023 1:11:32 AM

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