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April 16, 2024

"Apprendi, Punishment, and a Retroactive Theory of Revocation"

The title of this post is the title of this student note in the March 2024 Yale Law Journal authored by Jaewon Chris Kim that I just came across. Here is its abstract:

In Apprendi v. New Jersey, the Supreme Court announced what is now a seminal rule of constitutional criminal procedure: any fact that increases the penalty for a crime beyond the prescribed statutory maximum cannot be found by a judge, but must be submitted to a jury and proved beyond a reasonable doubt.  The doctrine arising from Apprendi and its descendant cases had, until recently, been confined to the sentencing context.  But in 2019, the Court in United States v. Haymond considered a potential expansion of Apprendi to judicial revocations of federal supervised release.  The Court ultimately handed down a 4-1-4 decision with minimal precedential value, but since then, there has been a swell of scholarship discussing the applicability of the jury right to this new context.  Much of this discussion has centered around the questions of constitutional interpretation raised by Haymond, and whether a revocation proceeding is part of a “criminal prosecution” as specified by the text of the Sixth Amendment.

This Note argues for a different approach.  Revisiting the Apprendi cases and their contemporary scholarly treatment reveals that the doctrine was rooted not in novel methods of textual interpretation, but in fundamental principles of substantive criminal law: what constitutes “crime” and “punishment.”  Existing scholarship has not provided an answer to how these principles might apply to a function that takes place after sentencing and final judgment, like revocation of supervised release.  I therefore introduce a retroactive theory of revocation that rationalizes Apprendi’s definition of crime and punishment within this context.  Under this theory, revocation proceedings are unconstitutional not because they are directly covered by the Sixth Amendment right to a jury trial, but because they circumvent a person’s original jury trial by allowing them to be “punished” for a different “crime.”  This means that every revocation of supervised release violates Apprendi.  Moreover, the retroactive theory suggests that other forms of post-judgment penalties, like extensions of probation and criminal fees, can similarly run afoul of the Sixth Amendment’s protections. 

April 16, 2024 at 04:57 PM | Permalink


Here in Kentucky, we have an analogous problem with the way the state court District and Circuit Court Judges handle probation violations. Although legal research clearly reveals that a being charged with a "probation violation" constitutes a new criminal charge, entitling the defendant to a prompt arraignment ("without undue delay", under the Ky. Rules of Criminal Procedure) and the setting of bond, many Kentucky Judges fail to recognize these necessities. They merely view the probation violation as an extension of the original criminal case, where the defendant has already been found guilty and sentenced, so they don't think he is entitled to prompt arraignment and the setting of bond, since he has already been found guilty of the underlying crime and sentenced. What typically happens here in Fayette County is that when the defendant comes before the Court the first business day after he is arrested, the Judge defers everything, until the defendant can be seen by his sentencing Judge. No real arraignment occurs, and the Judge refuses to set any bond. This plainly violates Section 16 of the Kentucky Constitution, which provides that all inmate-defendants are entitled to a reasonable bond, except in Capital cases, where the proof is great. Some Judges have a standing order that defendants charged with a probation violation are to be brought before the Court on the second Thursday after they are arrested, which leaves them sitting in jail without bond or a proper arraignment for 10+ days. Some of the Judges will then set a bond for their defendants charged with probation violations, but others refuse to let the defendant out of jail until the alleged probation violation is resolved, either by stipulation and guilty plea or a jury trial, which typically is scheduled months out into the future. Most but not all defendants charged with a probation violation are convicted and receive an additional sentence for the violation, which sentenced is determined by the Judge. I have also seen situations where the prosecutors keep people charged with a probation violation in jail for 7 months without bond, or with a $5,000 bond that they cannot pay, and then offer them a 6-month plea bargain, with time served. If the defendant wants his trial to establish that he is not guilty of the alleged probation violation, then he must sit in jail for another 2 or 3 months, waiting for his jury trial. Given this dynamic, many people plead guilty just to get out of jail and get back to work. Many people will lose their jobs, their apartments and have their vehicles repossessed if they spend just 2 or 3 weeks in jail and cannot work or earn an income. In one case, where a Ky. District Court Judge refused to set a bond in a probation violation case, we filed a Petition for Habeas Corpus in Circuit Court, asking the Circuit Judge to Order the District Judge to set a bond. The District Judge failed to attend the hearing, even though he was the named Respondent in the Habeas Corpus Petition. He thought that the County Attorney would represent his interests, but to his (later) surprise, even the County Attorney agreed that the Petitioner was entitled to have a bond set. The District Judge was shocked to be served with a Writ of Habeas Corpus at 3:30 p.m. on a Fridy afternoon, directing him to promptly hold a bond hearing for the defendant. He was angry that he had been embarrassed, so he set a bond of $5,000 in a misdemeanor case, with electronic monitoring and home incarceration, can only leave home to come to court and see defense counsel! Local defense lawyers are afraid to file Complaints against these Judges for failing to follow the law, because they must continue to appear before them with clients. It's a serious problem, rooted in the Judges' failures to understand that a "probation violation" is itself a separate, substantive crime under Kentucky law.

Posted by: Jim Gormely | Apr 16, 2024 6:41:14 PM

I think what constitutes a new crime is going to be a state-by-state issue.

Here in Missouri, there are two basic types of probation -- SIS and SES. For SIS, the court defers sentencing (and defendant is never sentenced if he successfully completes probation). If the defendant violates probation, the court proceeds to sentence her under the sentencing range for her offenses (to which she pled or a judge/jury found her guilty after trial). For SES, the court sentences the defendant before placing her on probation. If the defendant violates probation, the court is stuck with the original sentence and may not increase or decrease it. The court can only execute probation. Similarly, if the defendant is sent to prison and receives parole/conditional release before completing the sentence, the time to be served on any revocation is the remainder of the original sentence. In all of these cases, there is no new sentence imposed. I see that as far removed from the federal system in which the judge imposes a new sentence upon revocation of supervised release and, in theory, can keep on adding time if a defendant continues to violate new and additional supervised release terms imposed at the time of revocation.

Posted by: tmm | Apr 17, 2024 12:40:00 PM

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