The United States Law Week

Lengthy Sex Offender Prison Terms at Risk at Supreme Court

Feb. 25, 2019, 9:50 AM

Even casual viewers of “Law & Order” know that juries need to find defendants guilty beyond a reasonable doubt to convict them, setting the stage for judges to send them to prison.

But for sex offenders who’ve violated supervised release, a federal law at the center of U.S. Supreme Court arguments on Tuesday lets judges put them back behind bars up to life without jury findings and with a lower standard of proof than needed at trial.

The government says the law is important for protecting the public, but a federal appeals court in Denver said it’s unconstitutional.

It violates the Fifth and Sixth Amendments, the U.S. Court of Appeals for the Tenth Circuit said in 2017 in striking down part of the 2006 Adam Walsh Child Protection and Safety Act.

The provision takes away judges’ sentencing discretion and imposes punishment not based on a convict’s original crimes. The standard is new conduct which a jury hasn’t considered, the appeals court said.

Even the judge who imposed the additional prison term in the case described the situation as “repugnant.”

The justices are expected to decide the case by late June.

Surprise Search, Back to Prison

Andrew Ralph Haymond was convicted by a jury at trial in 2010 of possessing child pornography. He was sentenced to a few years in prison followed by 10 years of supervised release.

He began supervised release in 2013. Probation officers conducted a “surprise search” in 2015 of Haymond’s apartment where they found a phone containing child pornography, the Tenth Circuit said.

His probation officer alleged he violated the terms of his supervised release. A federal judge agreed and re-imprisoned him for the mandatory minimum of five years and tacked on more supervised release.

Judges can send offenders back to prison for life under the law though the government says the terms imposed are usually closer to what Haymond got.

The judge in this case found “by a preponderance of the evidence” that Haymond violated release conditions. That means the judge only needed to find that it was more likely than not that Haymond committed violations, rather than the beyond a reasonable doubt finding required at trial.

But the judge wasn’t happy about the law, saying at the time that it’s “repugnant to me that there is a mandatory five-year sentence in such a case where a defendant does not have the opportunity to ask for a jury or to be tried under what should be the legal standard that is beyond a reasonable doubt.”

No Jury Needed: Government

The Sixth Amendment jury-trial right doesn’t apply to supervised release proceedings, the government argues in its brief ahead of the Supreme Court argument.

Those proceedings simply concern “sentence-implementation facts that did not exist when the criminal prosecution occurred,” it contends.

Plus, the government says the high court has consistently held that previously convicted defendants “have only limited due-process rights in such sentence-administration contexts,” and those rights don’t include the right to a jury finding beyond a reasonable doubt.

The government is backed by a coalition of states concerned that any additional hurdles the justices impose on it could wind up applying to them, too.

Out of Step, Defendant Says

The law struck down by the Tenth Circuit “is a peculiar feature of the supervised release statute,” Haymond says in his brief.

It’s “fundamentally out of step with the system of supervised release” that the Supreme Court has considered in prior cases, he argues.

By requiring a penalty for violating supervised release, he says it can’t be viewed as a “mere modification of the original sentence.”

Haymond’s argument is all-or-nothing, in a sense.

He parries the government’s middle-ground position offered in its brief, which says that juries could potentially be furnished if the justices find they’re required.

That won’t do the trick, Haymond argues, insisting that the only realistic option is to strike down the law.

The case is United States v. Haymond, U.S., 17-1672, set for oral argument 2/26/19.

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: John Crawley at jcrawley@bloomberglaw.com; Jessie Kokrda Kamens at jkamens@bloomberglaw.com

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