[T]he Bill of Rights which we guard so jealously and the procedures it guarantees are not to be abrogated merely because a guilty man may escape prosecution or for any other expedient reason.
– Kennedy v. Mendoza-Martinez, 372 U.S. 144, 184 (1963)
Introduction
Each year, more than ten thousand people are imprisoned by federal courts without being charged with a crime, indicted by a grand jury, or found guilty beyond a reasonable doubt by a jury of their peers. Those results are authorized by federal statute, federal rule, and multiple appellate court decisions. The proffered justification: those defendants were convicted of a federal crime and, after serving their full term of imprisonment, failed to comply with a condition of their term of supervised release.
In this Essay, we argue that the federal supervised release system violates the fundamental constitutional protections guaranteed in the Fifth and Sixth Amendments. We begin with a brief history of supervised release, created in 1984 to replace federal parole. Like a defendant granted release on parole, one on supervised release is required to comply with certain conditions set by the court. Unlike parole, where a defendant could be released early from prison in exchange for a promise to abide by those conditions, supervised release does not replace time spent in prison. Best described as post-confinement surveillance, a term of supervised release can take effect only after a defendant has served the entire prison term imposed by a sentencing judge. During that term of supervised release, a defendant accused of failing to comply with any of those conditions may be arrested and sentenced to serve up to five years in federal prison—all without the constitutional protections ordinarily afforded those facing incarceration.
Following an overview of the structure of supervised release, we consider decisions of federal courts, which have repeatedly held that the protections of the Sixth Amendment do not protect defendants serving terms of supervised release and facing imprisonment. We argue that those decisions start from the wrong end of the constitutional analysis by failing to account for the role of the right to indictment enshrined in the Fifth Amendment. More specifically, a defendant accused of violating a condition of supervised release nearly always faces more than a year of imprisonment if convicted—an infamous punishment for purposes of the Fifth Amendment. As a result, we contend that the right to indictment applies to revocation proceedings, and subsequently, the Sixth Amendment rights applicable in a traditional criminal prosecution must also apply. Furthermore, we argue that there is no meaningful distinction, for Sixth Amendment purposes, between a revocation proceeding and an ordinary prosecution, and that decisions concluding otherwise rely on unsupportable legal fictions.
Ultimately, we conclude that the statutory scheme governing supervised release creates an unconstitutional workaround to the fundamental constitutional protections designed to limit the government’s power to arbitrarily imprison. Although dodging the demands of the Fifth and Sixth Amendments surely offers a more expedient route to imprisonment, prosecutors and probation officers should not have the discretion to choose a route to imprisonment that bypasses the Constitution.
I. The History
We begin with an overview of federal parole, the system supervised release was created to replace. We also touch on federal probation, a form of community supervision similar to parole, before turning to the legislative history of the Sentencing Reform Act of 1984 (“SRA”), the statute that created supervised release.
A. Parole
Congress enacted the first parole statute in 1910, modeling the federal system after state parole systems that had been on the books in the majority of states since the late 1800s. That statute authorized the early release of federal prisoners who had served at least one third of the prison term imposed by the sentencing judge. The decision whether to grant or deny release on parole was committed to the discretion of a federal parole board, and the scope of that discretion was broad: the board could grant parole to any individual who had “observed the rules of [the] institution” in which he was incarcerated so long as release was not “incompatible with the welfare of society.” Although allowed to leave prison, a parolee was still considered to be “in the legal custody and under the control of the warden of such prison from which paroled . . . until the expiration of the [prison] term or terms specified in his sentence.” In other words, a grant of parole allowed a term of incarceration to be served in the community but did not affect the length of that sentence.
A suspected violation of any parole condition could be punished swiftly and summarily: if any member of a board had “reliable information that the offender . . . violated his parole,” the board could issue an arrest warrant and require the parolee to be returned to prison. Only then would the parolee be afforded an opportunity to be heard before the board, which could decide either to alter parole conditions or to revoke the grant of parole entirely, sending the parolee back to prison to serve the “remainder of the sentence originally imposed.”
In the early days of the federal parole system, courts afforded only limited oversight of the board’s decisions to grant or revoke parole. Federal courts set forth a variety of justifications for declining to overturn the board’s decisions: some concluded that a parolee remained in the formal custody of the executive branch, while others suggested that parole was an act of grace by a “merciful executive” that could not be demanded as a matter of right. Finally, some courts rejected constitutional challenges to the parole system by reasoning that the parole board’s relationship with a parolee was not adversarial in nature, given the “genuine identity of interest . . . in the prisoner’s desire to be released and the [b]oard’s policy to grant release as soon as possible.” Because the relationship between the parolee and the board was not adversarial, the reasoning went, there was simply no need for courts to intervene to safeguard the rights of the parolee.
In 1972, however, the Supreme Court granted certiorari in Morrissey v. Brewer to consider whether revocation of parole without a hearing violated the constitutional requirements of due process. Noting that a parolee was technically still “in custody” and could therefore claim no entitlement to release on parole, lower courts had answered that question in the negative. The Supreme Court, however, disagreed. Relevant for our purposes, the Court began by explaining that because “the revocation of parole is not part of a criminal prosecution,” the “full panoply” of constitutional protections applicable in a criminal prosecution did not apply to a parole revocation proceeding. No real analysis was necessary to reach that conclusion: after all, parole “ar[ose] after the end of the criminal prosecution, including the imposition of sentence” and involved merely a decision about where the balance of that sentence would be served. Revocation of parole deprived an individual of only the “conditional liberty” granted in connection with early release from prison. Accordingly, it would make little sense to require the state to initiate a new prosecution simply to require the parolee to serve out the remainder of the existing sentence.
Although a revocation proceeding differed, for constitutional purposes, from a new prosecution, the Court acknowledged that parole revocation nevertheless inflicted a “grievous loss.” As a result, at least some due process protections were required before parole could be revoked. Specifically, due process mandated:
(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.
Those requirements would eventually be incorporated into Federal Rule of Criminal Procedure 32.1, later made applicable to probation revocation and supervised release proceedings.
B. Probation
Federal probation has a similar origin story. Although the first federal probation statute was not formally enacted until 1925, federal judges, relying on their broad sentencing discretion, would routinely sentence a defendant to a term of imprisonment and then “suspend[]” execution of that sentence “during the good behavior of the defendant.” If a defendant failed to comply with restrictions imposed in exchange for granting her leniency in the form of probation, probation could be revoked in favor of imprisonment. As was the case with parole, defendants were afforded little-to-no procedural protections before probation was revoked in favor of prison.
Similar to decisions considering parole revocations, federal courts routinely rejected challenges to the lack of procedural protections available before probation was revoked, on the premise that a grant of probation was a privilege or act of grace afforded by a benevolent court, or suggesting that district courts should have broad discretion over all aspects of probation in order to effectuate the “humane” purpose of probation.
In 1973, shortly after deciding Morrissey, the Supreme Court granted certiorari in Gagnon v. Scarpelli to consider whether “a previously sentenced probationer is entitled to a hearing when his probation is revoked and, if so, whether he is entitled to be represented by appointed counsel at such a hearing.” Gagnon, like Morrissey, involved a challenge to a probation revocation that had taken place without a hearing or other procedural protections. Citing to a 1967 decision, Mempa v. Rhay, the Court first distinguished a probation revocation hearing from a sentencing proceeding. Pursuant to the unique state statutory scheme at issue in Mempa, judges had the authority to defer a sentencing decision in favor of probation; however, if a defendant failed to comply with the conditions of probation, the judge was required to sentence her to the statutory maximum for the original crime of conviction. Because that proceeding functioned, in essence, as a sentencing proceeding, the Mempa Court concluded that the Sixth Amendment right to counsel applied.
Gagnon, by contrast, involved a different type of revocation proceeding. The petitioner in Gagnon had been formally sentenced to fifteen years’ imprisonment, but the judge had then suspended the sentence in favor a seven-year term of probation. Like revocation of parole, revocation of probation under that scheme merely triggered the execution of the sentence already imposed, and the Gagnon Court therefore concluded that revocation was not a “stage of a criminal prosecution.” Further distinguishing the proceeding from a prosecution, the Court noted, was the absence of an adversarial relationship between the state and the defendant. In particular, the state was represented not by a prosecutor, but by a parole officer whose interests were, at least in theory, aligned with those of the probationer. Rather than the full panoply of rights afforded in a traditional criminal prosecution, the Court reasoned that only the limited procedural protections identified by the Morrissey Court were required before probation could be revoked.
In so holding, the Gagnon Court clarified that whether a revocation proceeding implicates Sixth Amendment rights or merely due process concerns turns on the nature of what the court is deciding. Like in Morrissey, the Court in Gagnon considered a term of imprisonment that had been imposed by a judge but from which the defendant had been granted a reprieve, either in the form of early release from prison or the opportunity to avoid prison altogether. Revocation of that grant of leniency resulted merely in execution of that previously-imposed sentence. Mempa, by contrast, involved something akin to an entirely new sentencing proceeding, to which the Sixth Amendment right to counsel applied.
Probation—and the constitutional mandates set forth in Gagnon—ultimately survived the sweeping changes made by the SRA. Although the SRA directed judges to treat probation as “a form of sentence with conditions rather than as a deferral of imposition or execution of a sentence,” judges still had broad authority to revoke probation and resentence a defendant for up to the statutory maximum term of imprisonment for the crime of conviction if he or she failed to comply with conditions the judge had imposed in exchange for granting a reprieve from prison.
C. Supervised Release
By the early 1980s, the federal parole system had come under fire from both sides of the political spectrum as creating unwarranted sentencing disparities among federal offenders and sentences of indeterminate length. As part of an attempt to comprehensively reform federal sentencing and in response to widespread criticism of parole, the sponsors of the SRA elected to simply abolish federal parole entirely rather than attempt reforms. In lieu of parole, they created supervised release, a form of post-confinement monitoring that followed—rather than replaced—imprisonment. As the Senate Report accompanying the SRA explained,
the court, in imposing a term of imprisonment for a felony or a misdemeanor, [may] include as part of the sentence a requirement that the defendant serve a term of supervised release after he has served the term of imprisonment. . . . The term of supervised release would be a separate part of the defendant’s sentence, rather than being the end of the term of imprisonment.
As originally designed, supervised release was supposed to afford rehabilitation rather than impose punishment. The punitive portion of a sentence would have been served by the time supervised release commenced, and the primary goal of supervised release was therefore “to ease the defendant’s transition into the community after the service of a long prison term for a particularly serious offense, or to provide rehabilitation . . . .” Accordingly, judges were to consider “deterrence and rehabilitation,” but not the need for retribution, in determining whether to sentence a defendant to a term of supervised release and in selecting the conditions to impose. One important “condition,” however, was mandatory—a judge was required to order that a defendant on supervised release “not commit another Federal, State, or local crime during the term of supervision.”
In line with the rehabilitative purpose of supervised release, the SRA initially provided no mechanism for a judge to “revoke” a term of supervised release. Instead, judges were to “treat a violation of the conditions of supervised release as a criminal contempt.” In other words, anyone accused of violating a condition of supervised release would be entitled to “trial by jury (for all cases involving a sentence of more than six months), along with all the other procedural protections applicable in a criminal proceeding.”
Just before the SRA went into effect, however, Congress passed the Anti-Drug Abuse Act (“ADAA”) of 1986, a tough-on-crime statute that increased the penalties for certain drug offenses. Most significantly, the ADAA made what was described as a “technical amendment” to the SRA, authorizing courts to “revoke” a term of supervised release and impose a new term of imprisonment, pursuant to the procedures set forth in Federal Rule of Criminal Procedure 32.1, “if it [found] by a preponderance of the evidence that the person violated a condition of supervised release.” In so doing, the ADAA jettisoned the carefully crafted procedures originally envisioned by the SRA’s drafters in favor of the revocation mechanism—and limited procedural protections—developed in the context of parole.
The sparse legislative history of the revocation provision of the ADAA affords little insight into the intent of its drafters; at best, that history suggests that the amendment was not thoroughly considered. The impact of that amendment, however, was dramatic; passage of the amendment restored a key aspect of the old parole system that the SRA’s drafters had worked so hard to excise from federal sentencing practice.
II. Supervised Release is Constitutionally Different
Citing principally to the similarities between the procedural protections afforded by statute for supervised release revocations and those governing parole revocations, federal courts analyzing the SRA quickly concluded that, at least for constitutional purposes, the two systems were virtually indistinguishable. More specifically, courts reflexively invoked Morrissey and Gagnon to conclude that, like revocation of parole or probation, supervised release violation proceedings were distinguishable from a criminal prosecution to which the protections of the Fifth and Sixth Amendments apply.
To be sure, supervised release, parole, and probation share certain similarities—each involves, at one point or another, supervision by a parole or probation officer outside the walls of prison. But we argue that, for constitutional purposes, the differences between parole, probation, and supervised release are more important than their similarities. Most significantly, pursuant to the plain text of the statute governing supervised release, unlike probation or parole, supervised release can take effect only after the full term of imprisonment imposed by a judge has been served and thus cannot afford a reprieve from imprisonment. As a result, when a judge purports to “revoke” a term of supervised release in favor of imprisonment, what she is actually doing is imposing a new and additional term of imprisonment, distinct from the original term of imprisonment imposed as punishment for the underlying crime.
In our view, that distinction is critically important. Consider the structure of a supervised release revocation proceeding. First, a defendant is formally accused—most often by a United States Attorney or United States Probation Officer—of violating a condition of supervised release. After that formal accusation is lodged with a court, a defendant must either plead guilty to the violation conduct, or instead defend against those accusations at a formal hearing where the government attempts to prove her guilt. If the government succeeds, she faces, in some cases, up to five years in prison for each charge. Because revocation of supervised release involves (1) a formal accusation of wrongdoing, (2) followed by an adversarial proceeding to adjudicate a defendant’s guilt, and (3) leads to a new and additional term of imprisonment, we contend that those proceedings are fundamentally different than those considered by the Morrissey or Gagnon Courts. Instead, supervised release revocation proceedings are—for constitutional purposes—indistinguishable from a criminal prosecution to which the protections embodied in the Fifth and Sixth Amendments always apply.
To the extent that courts have considered that argument, they have done so through the lens of the Sixth Amendment. On the premise that a revocation proceeding differs from a prosecution, they have concluded that the full panoply of Sixth Amendment rights does not apply. In our view, those decisions fail to account for the role of the right to indictment guaranteed by the Fifth Amendment. More specifically, in nearly all revocation proceedings, a defendant faces a potential sentence of more than a year of imprisonment if convicted—an “infamous” punishment within the meaning of the Fifth Amendment. As a result, the right to indictment applies to such proceedings. And if the right to indictment applies, then a revocation proceeding—at which a defendant’s guilt or innocence is adjudicated and that may result in a term of imprisonment—necessarily amounts to a prosecution. In other words, the Sixth Amendment “prosecution” inquiry does not resolve the Fifth Amendment right to indictment issue, but the Fifth Amendment right to indictment inquiry does resolve the Sixth Amendment “prosecution” issue. Furthermore, there are no meaningful differences between “criminal prosecutions” and supervised release violation proceedings for purposes of the Sixth Amendment.
A. The Fifth Amendment
The Fifth Amendment provides that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” Unlike the Sixth Amendment, which protects the “accused,” the Fifth Amendment sweeps more broadly—by its terms, it protects “a person,” one who has yet to become formally ensnared in the justice system. Indeed, the right to indictment by a grand jury guards against “an open and public accusation of crime, and from the trouble, expense, and anxiety of a public trial, before . . . probable cause is established.”
Significantly, the right to indictment is triggered only when one is “held to answer” for a crime. Although the historical record on the meaning of that term at the time the Bill of Rights was drafted is relatively sparse, we can conclude at the very least that one is held to answer when he is required to appear and “explain and justify his conduct” in response to the levying of formal charges in a court with the power to punish him.
By contrast, the definition of “infamous crime,” as the term is used in the Fifth Amendment, is well-settled. The Supreme Court has explained that infamous punishments include “sentences of imprisonment in a penitentiary and sentences to hard labor. They do not include ordinary misdemeanor sentences of no more than a year in jail.” Pursuant to federal statute, any sentence of more than one year may be served in a penitentiary. Thus, all federal felonies, i.e., crimes punishable by more than one year in prison, expose the defendant to time in a penitentiary and therefore trigger the right to indictment.
By its terms, therefore, the right to indictment attaches to the great majority of revocation proceedings. First, and most significantly, the statute governing supervised release revocations authorizes judges to impose between two and five years of imprisonment for violating a condition of supervised release, depending on the seriousness of the underlying crime giving rise to the term of supervised release. In nearly every revocation proceeding, a defendant found guilty of committing the violation conduct could therefore be made to suffer an infamous punishment within the meaning of the Fifth Amendment. Further, one accused of violating a condition of release is formally charged with committing the violation conduct and must appear in court and either admit to the violation or present a defense—in other words, “held to answer” within the meaning of the Fifth Amendment. Finally, the Fifth Amendment protects a “person,” rather than an accused. As a result, even assuming, as some courts have done, that a revocation proceeding cannot be “deemed” a “criminal prosecution” for Sixth Amendment purposes (a proposition with which we disagree, as discussed below), the rights set forth in the Fifth Amendment apply to revocation proceedings.
In contrast to the more robust dispute over whether the Sixth Amendment governs revocation proceedings, the role of the Fifth Amendment in revocation proceedings has been largely ignored. Most courts have simply proceeded from the assumption that, because a revocation proceeding is distinguishable from a prosecution, no right to indictment attaches. As a general matter, we can imagine two possible reasons why the right would not apply: (1) supervised release violations are not crimes to which the right to indictment attaches; or (2) the indictment (or waiver thereof) supporting the underlying conviction for which the term of supervised release was imposed suffices to meet the Fifth Amendment indictment requirement. We consider both options below.
1. Is an Indictment Required to Charge a Supervised Release Violation?
One possible reason the right to indictment does not apply in revocation proceedings is that violating a condition of supervised release is not a “crime” within the meaning of the Fifth Amendment. Although there is no clear definition of a “crime” as used in the Fifth Amendment, the Supreme Court has explained that, at the time of framing, a crime was understood to be an “act[] to which the law affixes . . . punishment” or “the wrong upon which the punishment is based.” Of particular importance in determining whether a statute creates a “crime” is the measure and type of punishment that the legislature has elected to impose. In fact, it is the nature and severity of a particular punishment that the Supreme Court has repeatedly used to delineate crimes from civil wrongs.
Consider that definition in the context of a revocation proceeding. To be sure, Section 3583 is not a traditional criminal statute—for example, it does not identify the elements comprising a particular offense for which punishment can or must be imposed. By its terms, however, Section 3583 does “affix[] punishment” to the act of violating a condition of supervised release. Most importantly, the nature and severity of that punishment—incarceration in a federal prison or penitentiary—is indistinguishable from the punishment imposed for committing a felony. As a result, the right to indictment ought to attach.
2. Can the Indictment Supporting the Underlying Conviction Also Support a Charge of Violating Supervised Release?
A second possibility is that every person serving a term of supervised release for a felony conviction has already been indicted—or waived the right to indictment—in connection with the original prosecution. It is therefore at least theoretically possible that the indictment for that original offense could satisfy the right to indictment for any supervised release violation. After all, some courts (again relying on Morrissey) have held that any new term of imprisonment imposed following supervised release revocation is authorized by the original sentence and, by implication, the original indictment.
Of course, it would be metaphysically impossible for an indictment for the underlying conviction to have actually included charges relating to yet-to-be-committed violation conduct. In addition, the idea that the original conviction somehow authorizes any new punishment imposed after revocation is foreclosed by Supreme Court precedent. Specifically, the Supreme Court has repeatedly held that an indictment must charge the elements of the crime for which an individual is ultimately prosecuted and punished. Indeed,
[t]he very purpose of the requirement that a man be indicted by grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge. Thus the basic protection the grand jury was designed to afford is defeated by a device or method which subjects the defendant to prosecution for interference with [conduct] which the grand jury did not charge.
Any substantive charges set forth in that indictment “may not be broadened through amendment except by the grand jury itself.” As a result, the original indictment cannot constitutionally cover future conduct unknown to the grand jury at the time it voted to indict.
The constitutional guarantee against double jeopardy also forecloses the argument that the original indictment somehow covers the new punishment. The Double Jeopardy Clause protects not only against multiple prosecutions for the same offense, but also “against multiple punishments for the same offense” unless cumulative punishments are specifically authorized by the legislature. Given that post-revocation penalties are not imposed as part of the original prosecution, any attempt to attribute those penalties to the original conviction runs afoul of the constitutional prohibition against multiple punishments for the same offense.
In sum, the punishment imposed for violating a condition of supervised release cannot be based on the original prosecution—either the original conviction or the original sentence. As a result, courts cannot constitutionally imprison a person for violating a condition of supervised release unless she has been indicted for that conduct by a grand jury.
B. The Sixth Amendment
The Sixth Amendment proclaims that,
[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . [;] to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
In our view, whether or not the Sixth Amendment applies in revocation proceedings is a question with a straightforward answer—because the right to indictment must apply in revocation proceedings, revocation proceedings necessarily constitute prosecutions. The indictment, in other words, transforms a “person” into “the accused.”
But even putting aside the implications of the right to indictment, revocation proceedings have all the earmarks of a traditional prosecution within the meaning of the Sixth Amendment. Although historical records do not offer a precise definition of the term “prosecution” at the time the Sixth Amendment was adopted, we can glean from that record the type of proceedings to which the rights encompassed in the Sixth Amendment were designed to apply and the interests they were designed to safeguard.
First, the Sixth Amendment is distinct from the Fifth in that it protects only “the accused.” A prosecution, within the meaning of the Sixth Amendment, necessarily involves the “filing [of] formal charges in a court with jurisdiction to try and punish the defendant.” The filing of a formal accusation transforms the proceeding into an adversarial one, with the government standing on one side of the courtroom as the accuser and the citizen standing on the other as the accused. That adversarial relationship between citizen and government is a “defining characteristic” of a prosecution; perhaps above all else, the Sixth Amendment was designed to protect a citizen “faced with the prosecutorial forces of organized society.” And perhaps most importantly, a prosecution is a proceeding that can result in the infliction of punishment—most significantly, the loss of liberty.
In our view, a supervised release revocation proceeding has all the “defining characteristics” of a prosecution within the meaning of the Sixth Amendment. First, one accused of violating a condition of supervised release is formally accused of committing new, wrongful conduct in a court with the power to adjudicate guilt or innocence and impose punishment. Most significantly—and unlike the petitioners in Morrissey and Gagnon—a defendant convicted of violation conduct may be sentenced to a new and additional punishment, distinct from any punishment inflicted for the original offense. As a result, one facing revocation of supervised release is, for Sixth Amendment purposes, an “accused”—she has been formally charged with committing an act to which the law “affixes punishment” in the form of an additional prison sentence. Finally, the proceeding convened to adjudicate her guilt—a revocation hearing—is inherently adversarial in nature. Although revocation proceedings may be initiated by a U.S. Probation Officer, a U.S. Attorney, or even the court itself, it is an Assistant U.S. Attorney, with all of the resources made available for prosecuting federal crimes, who generally takes on the burden of proving guilt by a preponderance of the evidence. And at that proceeding, the government—whether represented by a U.S. Probation Officer or a U.S. Attorney—has undoubtedly “committed itself to prosecute” such that “the adverse positions of government and defendant have solidified.” In other words, for Sixth Amendment purposes, the proceeding is indistinguishable from a traditional prosecution.
III. The Constitutional Work Arounds
Unlike with the right to indictment, courts have repeatedly wrestled with the question of whether the Sixth Amendment rights applicable to a traditional criminal prosecution govern supervised release revocation proceedings and have uniformly held that they do not. We consider the primary arguments advanced by those courts below.
A. Part of the Original Penalty
Shortly after enactment of the ADAA, Congress amended Section 3583 to make it more punitive. Specifically, amendments enacted in 1987 had the effect of increasing the length of the supervised release term a court could impose, and, more importantly, the length of imprisonment a defendant could serve upon revocation. Amendments passed in 1994 required “revocation” and imprisonment if a court found by a preponderance of the evidence that a supervisee had violated certain “conditions” of supervised release.
Defendants sentenced pursuant to those amendments quickly began raising ex post facto challenges, forcing appellate courts to grapple, for the first time, with what post-revocation penalties were actually punishing. Relying in part on the absence of constitutional protections prescribed by Section 3583(e) before supervised release could be revoked, a majority of appellate courts concluded that post-revocation imprisonment had to be part of the original penalty for the underlying crime. In so holding, those courts acknowledged that the alternative interpretation—that the new prison term was punishing the violation conduct itself—was constitutionally problematic. In particular, if that new prison term was punishment for the new conduct, courts were imprisoning people for conduct that often did not constitute a crime and were doing so without any of the procedural protections available in an ordinary prosecution.
The question reached the Supreme Court in Johnson v. United States, a case involving yet another ex post facto challenge to the application of a particular amendment to Section 3583. Although acknowledging the “intuitive appeal” of the idea that revocation sanctioned the violation conduct itself, the Johnson Court candidly explained that “construing revocation and reimprisonment as punishment for the violation of the conditions of supervised release” would essentially render the statute unconstitutional. More specifically, if the new term of imprisonment was sanctioning the new conduct, there were at least three major constitutional issues: (1) courts were imprisoning people for conduct that was not criminal; (2) courts were imprisoning people based on a finding by a single judge employing a preponderance of the evidence standard; and (3) where the violation conduct was criminal in its own right, courts were punishing people twice—potentially in violation of the Double Jeopardy Clause. In short, if post-revocation penalties were attributable to the new offense conduct, revocation proceedings looked uncomfortably similar to criminal prosecutions, albeit without affording defendants the requisite constitutional protections. Rather than address those constitutional problems, the Johnson Court offered a workaround—by calling the new prison term “part of the penalty for the initial offense,” the Court suggested those constitutional problems could simply be “avoid[ed].”
Ultimately, the Johnson Court also dodged the question whether the application of amendments to Section 3583 violated the Ex Post Facto Clause, rendering its discussion of the constitutionality of post-revocation penalties dicta that might reasonably have been disregarded. Instead, and perhaps because of the dearth of other Supreme Court authority addressed to supervised release, lower courts seized upon that rationale in response to myriad challenges to the constitutionality of Section 3583. Claiming that post-revocation penalties could be “treated” or “deemed” part of the original penalty—rather than new punishment for new conduct—courts purported to distinguish revocation proceedings from prosecutions. As a result, they determined that defendants in those proceedings were not entitled to “the full panoply of rights that criminal defendants generally enjoy.”
B. Conditional Liberty
The second argument invoked to reject Sixth Amendment challenges to revocation proceedings developed in response to Apprendi v. New Jersey, a Supreme Court decision issued in 2000. Apprendi considered the difference between a sentencing factor and an element of a crime for Sixth Amendment purposes and involved a state sentencing scheme that blurred the lines between the two. Building on its prior precedents, the Apprendi Court drew a bright line rule. “Other than the fact of a prior conviction,” the Court explained, “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
In the wake of Apprendi and its progeny, defendants began to argue that, if the sanctions for violations of supervised release exceeded the statutory maximum for the underlying offense, the revocation sentence amounted to a violation of Apprendi. Others raised more sweeping challenges to the statutory scheme, claiming that imposing a term of imprisonment based solely on a single judge’s findings—made by a preponderance of the evidence—violated the Fifth and Sixth Amendments.
Perhaps because the “original penalty” rationale seemed to run headlong into the holding of Apprendi and its progeny, appellate courts confronting Apprendi-based challenges to revocation fell back on Morrissey, which, of course, is a decision about parole. In particular, courts invoked Morrissey’s discussion of “conditional liberty” to justify revoking supervised release without affording a defendant’s Sixth Amendment rights. One Second Circuit case—United States v. Carlton—offers the strongest example. The petitioner in Carlton, sentenced by a district court to serve thirty-five months’ imprisonment for committing armed bank robbery while on supervised release, challenged his revocation sentence as violative of the Fifth and Sixth Amendments. Recognizing that simply labeling that new punishment part of the original penalty did not satisfactorily resolve the Sixth Amendment problem, the Carlton court advanced a new theory. Reasoning that a defendant on supervised release—like one on parole—enjoys only a pared down version of liberty, the Carlton court explained that the petitioner was not entitled to the full complement of rights afforded one “to whom the presumption of innocence attaches.” In other words, by virtue of the fact that he had been convicted of a crime and sentenced to a term of supervised release, the petitioner had “surrender[ed] . . . certain constitutional rights” such as his “rights to trial by jury and to having accusations against him proved beyond a reasonable doubt.” In the wake of Carlton, other courts rejected challenges to the revocation scheme premised on Apprendi by invoking similar reasoning (and often by citing to Carlton).
C. Breach of Trust
Finally, courts have deemed the Sixth Amendment inapplicable in revocation proceedings by concluding that post-revocation penalties merely sanction a defendant’s “breach of trust” rather than punish the violation conduct itself. Citing principally to the Sentencing Commission’s policy statement on supervision violations, courts have reasoned that any new term of imprisonment imposed punishes the defendant’s failure to comply with the judge’s order setting conditions of supervised release. Because the punishment imposed is divorced from the new offense conduct, those courts have reasoned, the proceeding is distinguishable from a prosecution.
In United States v. Haymond, the Supreme Court’s most recent tangle with the constitutionality of Section 3583, the Court (specifically, a controlling concurrence) endorsed that rationale. Haymond concerned a challenge to the constitutionality of Section 3583(k), which provided that a judge who finds “by a preponderance of the evidence that a defendant on supervised release committed one of several enumerated offenses, including the possession of child pornography” must impose a sentence of at least five years’ imprisonment. The petitioner in Haymond, who had been sentenced to serve an additional five years in prison for violating a condition of supervised release, challenged his conviction and sentence as violative of the Fifth and Sixth Amendments as interpreted in Apprendi. Noting that the petitioner had been subjected to an increased statutory maximum penalty based solely on a judge’s findings by a preponderance of the evidence, a plurality of the Supreme Court agreed.
Concurring solely in the judgment, Justice Breyer disagreed with the idea of “transplant[ing] the Apprendi line of cases to the supervised-release context.” Nevertheless, he agreed that Section 3583(k) was unconstitutional. Unlike an ordinary revocation proceeding, which properly sanctioned “the defendant’s ‘breach of trust’—his ‘failure to follow the court-imposed conditions’ that followed his initial conviction,” Section 3583(k) was “more like punishment for a new offense, to which the jury right would typically attach.” In other words, the dispositive question, for constitutional purposes, was the purpose of the new term of imprisonment: punishment for a breach of trust did not implicate the Sixth Amendment, whereas punishment for new criminal conduct certainly did. Following Haymond, courts of appeals rejected a number of Sixth Amendment challenges to the statute by citing to that concurrence, concluding that because revocation punished a defendant’s breach of trust—rather than the violation conduct itself—it was constitutionally sound.
IV. The Constitutional Work Arounds Do Not Work
In our view, each of the primary arguments advanced to distinguish revocation proceedings from prosecutions to which the Sixth Amendment applies is without merit. Turning first to the rationale that revocation is part of the original penalty, the idea that, because “a term of supervised release is imposed as part and parcel of the original sentence,” post-revocation sanctions are “part of the penalty for the initial offense” certainly has intuitive appeal: supervised release was imposed as part of the original sentence, and the defendant was warned at sentencing of the consequences for violating the conditions set by a judge.
That rationale, however, ignores the plain text and legislative history of the SRA, which carefully delineates a term of supervised release from a term of imprisonment. As the Supreme Court has explained, “[s]upervised release fulfills rehabilitative ends, distinct from those served by incarceration,” and “prison time is ‘not interchangeable’ with supervised release.” Under Section 3583(e), supervised release and imprisonment also serve different goals; Section 3583(e) excludes the need to “provide just punishment” from the factors a judge must consider in deciding whether to impose or to “revoke” supervised release. In short, the punitive part of the sentence has been completed by the time a judge is considering revocation. Any new punishment imposed therefore cannot logically be considered part of the penalty for the original offense or even “part of the whole matrix of punishment which arises out of a defendant’s original crimes.” Instead, it can only reasonably be understood as new punishment for new conduct, and thus violative of the Grand Jury and Double Jeopardy Clauses of the Fifth Amendment.
Similarly, the argument that revocation merely sanctions a breach of trust is unsupportable. More specifically, a judge who imposes a term of supervised release is not granting a defendant a reprieve from imprisonment in exchange for the defendant’s promise to comply with the conditions the judge sets. Instead, that judge is imposing an additional period of surveillance that begins only after the entire prison term she imposes has been served. Supervised release is therefore best understood as the opposite of trust. As a result, any post-revocation term of imprisonment cannot logically be understood to punish anything other than the new violation conduct.
Moreover, even accepting the premise of the argument that revocation merely punishes failure to follow court orders, federal judges are not all-powerful despots with the authority to summarily imprison a person who disappoints them or breaches their trust. To be sure, judges have the statutory authority to punish persons for criminal contempt and to imprison or fine them for that contempt. But as discussed above, contempt proceedings require nearly all of the fundamental rights applicable to an ordinary prosecution. Therefore, even assuming that a post-revocation penalty merely sanctions the failure to follow a court order, the contempt authority does not justify the summary proceedings currently employed to adjudicate supervised release violations.
Finally, the argument that those on supervised release are entitled only to “conditional liberty” elides the fundamental distinctions between supervised release and parole. To be sure, the liberty of one serving a term of supervised release is “conditional” in one sense—failing to comply with conditions set by the sentencing judge may lead to imprisonment. But that is not the “conditional liberty” described by Morrissey or Gagnon. Both of those decisions considered systems in which a defendant received a benefit—freedom—in exchange for her promise to abide by certain restrictions. That grant of liberty was “conditioned” on compliance with those restrictions and could be revoked if the defendant failed to hold up her end of the agreement. Supervised release, by contrast, involves no reprieve from prison granted in exchange for a defendant’s good behavior. In the context of supervised release, the necessary “condition” never exists. As a result, the “conditional” liberty to which a defendant is subject is distinct from the contractual-like liberty described by Morrissey and Gagnon.
Furthermore, Morrissey did not suggest that an individual on parole somehow forfeited constitutional protections by virtue of being on parole; instead, the Court reasoned that, once the government had successfully prosecuted an individual for a crime, it should not have to go through that burdensome process once again only to reimpose the same sentence a judge had previously imposed. Supervised release, by contrast, does not authorize a judge or parole board to afford a reprieve from prison in exchange for compliance with certain conditions. As a result, the “revocation” of supervised release is simply a new punishment, triggered by the commission of new wrongful conduct. To suggest that one on supervised release is entitled to lesser constitutional protections by virtue of having been convicted of the original offense, then, is to say that a criminal conviction cancels a person’s right to constitutional protections in any future prosecution. Surely, that cannot be the case.
Conclusion
Those who drafted the Fifth and Sixth Amendments did so with the goal of making it difficult for the government to arbitrarily imprison a person. The current supervised release system offers prosecutors and courts what amounts to an end run around those carefully crafted protections, an expedient route to imprisonment that avoids the inconveniences of obtaining an indictment, affording the right to jury trial, and proving guilt beyond a reasonable doubt. In our view, it is that very expediency that violates the Constitution, harming not only those whose constitutional rights are denied, but also eroding—prosecution by prosecution—the constitutional structure put in place by the Framers to protect ordinary citizens from the misuse of government power.
Panel A. January 1, 2019–December 31, 2021.
Panel B. January 1, 2022–September 21, 2022.
Panel C. January 1, 2019–September 21, 2022.
Panel A. January 1, 2019–December 31, 2021.
Panel B. January 1, 2022–September 21, 2022.
Panel C. January 1, 2019–September 21, 2022.