You might think that before someone can go to prison, they need to plead guilty or a jury needs to find them guilty beyond a reasonable doubt.
But when a convicted defendant violates the terms of their supervised release, a judge can still lock them back up, without a jury and under the lower “preponderance of the evidence” standard — even if the total time they would serve exceeds the maximum time that a judge could have put them away for at their initial sentencing.
Justice Neil Gorsuch was the only one who raised concerns about this phenomenon on Monday, when he dissented from the court’s refusal to consider the issue in the case of Jaron Burnett.
Burnett pleaded guilty in New Jersey federal court to transporting a person via interstate commerce to engage in prostitution. He was sentenced to 105 months of imprisonment, followed by 15 years of supervised release. The maximum term he faced at sentencing was 120 months. But due to release violations found by a judge under the lower evidentiary standard, he was in custody for longer than that: 132 months.
His lawyers petitioned the justices, arguing that the Constitution provides jury rights for people when a supervised release violation could lead to a prison term longer than the maximum time they initially faced at sentencing. When that original maximum term is exceeded, they argued, “it is effectively a new penalty implicating the jury right.”
In his dissent from the court’s refusal to review Burnett’s case, Gorsuch said the defense “does not ask for much.” The justice noted that Burnett didn’t object in general to being locked up for release violations or to using the lower evidentiary standard.
“All Mr. Burnett claims is the right to have a jury decide any contested facts under the reasonable doubt standard where, as here, a court seeks to impose a sentence that will cause a defendant’s total time in prison to exceed the statutory maximum Congress has authorized for his underlying conviction,” Gorsuch wrote.
“I would have taken this case to consider that argument,” the justice continued, calling his colleagues’ failure to address the constitutional issue “unfortunate.”
He concluded by expressing his hope that the court “will take up another case like his soon — and that, in the meantime, lower courts will more carefully consider the Sixth Amendment’s application in this context.”
Opposing high court review, the Justice Department said the defense’s framing misunderstood the punishment imposed at the initial sentence. The DOJ observed that supervised release is an independent part of the sentence that isn’t restricted by the maximum prison time initially imposed.
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Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro,” a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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