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September 18, 2023

Notable Ninth Circuit amicus brief making originalist case that jury trial right attaches to revocation of federal supervised release

I have noted in this prior post Professor Jacob Schuman work on the law of revocation at the Founding.  Now appearing on SSRN is this Brief of Criminal Law Scholars seeking to operationalize this work as Amici Curiae in Support of Appellant Seeking Reversal in US v. Bowers (9th Cir.).  Here is how the brief is described via the SSRN abstract:

This brief of criminal law scholars as amici curiae explains why the original understanding of the jury right requires a jury trial for revocation of supervised release.

The Supreme Court interprets the Fifth and Sixth Amendment jury right based on “the historical role of the jury at common law ... in the colonies and during the founding era.” Southern Union Co. v. United States, 567 U.S. 343, 353 (2012).  In United States v. Haymond, 139 S. Ct. 2369 (2019), the Court split 4-1-4 on whether a five-year mandatory-minimum sentence imposed upon revocation of supervised release violated the jury right.  In his dissenting opinion, Justice Alito identified “forfeiture” of a “recognizance” as the closest Founding Era equivalent to revocation of supervised release, but said he could find “no evidence” that forfeiture proceedings required a jury trial.

Justice Alito was half-right. When the Constitution was ratified, forfeiture of a recognizance was the closest equivalent to revocation of supervised release.  However, there is also abundant evidence that recognizance forfeitures at the Founding did require a jury trial.

This jury requirement only disappeared during the 19th century due to the development of parole and probation, which changed the structure of community supervision from an additional penalty to a withheld punishment.  Because supervised release is structured as an additional penalty, not a withheld punishment, the common law at the time the Constitution was ratified would require a jury trial for revocation of supervised release, even if not for revocation of parole or probation.  Revoking supervised release based on judge-found facts therefore violates the original understanding of the right to a jury trial.

September 18, 2023 at 05:52 PM | Permalink


From what you have written, then, it seems probable that the Federal prosecutors and Judges have violated the Sixth Amendment rights of thousands of defendants since 1988! And yet, they are immune from civil lawsuits for that conduct.

Posted by: Jim Gormley | Sep 19, 2023 6:13:22 PM

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