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Gorsuch Sides with Liberals in Child Porn Sentencing Case (3)

June 26, 2019, 2:09 PMUpdated: June 26, 2019, 7:39 PM

Justice Neil Gorsuch again joined his liberal U.S. Supreme Court colleagues when he wrote an opinion siding with a man convicted of child pornography offenses who faced more prison time for violating supervised release.

Though a more reliably conservative vote in other areas—and in criminal cases involving death row prisoners, in particular—it’s the latest instance of Gorsuch applying a limited government mentality to help convicts on appeal.

Just this week, he cast the tie-breaking vote for the defense in another criminal case, and earlier this he term provided the liberals with a fifth vote in decisions favoring American Indian rights.

In this latest decision on June 26, Gorsuch ruled for Andre Haymond, who was thrown back in prison by a judge for violating supervised release in a child pornography case.

“Only a jury, acting on proof beyond a reasonable doubt, may take a person’s liberty,” Gorsuch wrote.

“Yet in this case a congressional statute compelled a federal judge to send a man to prison for a minimum of five years without empaneling a jury of his peers or requiring the government to prove his guilt beyond a reasonable doubt,” he wrote. “As applied here, we do not hesitate to hold that the statute violates the Fifth and Sixth Amendments.”

That part of Gorsuch’s opinion was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan.

Justice Stephen Breyer joined in the judgment, writing a concurrence which, notably, began by saying that he agreed with much of Justice Samuel Alito’s dissent.

Though Breyer agreed with Gorsuch’s plurality opinion that the provision is unconstitutional, he said that, “in light of the potentially destabilizing consequences, I would not transplant the Apprendi line of cases to the supervised-release context.” That’s a reference to Apprendi v. New Jersey, a 2000 case where the high court held that the Constitution requires that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt.

Gorsuch’s plurality opinion embraced the Apprendi rationale in the supervised-release context.

Alito’s dissent, joined by Chief Justice John Roberts and Justices Clarence Thomas and Brett Kavanaugh, said there’s no “constitutional basis” for the court’s holding, which Alito said is set out in Breyer’s narrower opinion. Alito said Gorsuch’s opinion “appears to have been carefully crafted for the purpose of laying the groundwork for later decisions of much broader scope.”

If the court goes further down this road, Alito said, “the consequences will be far reaching and unfortunate.”

The reach of the decision for now may depend on whether Alito is correct that Breyer’s narrower opinion is the law of the land. The Supreme Court has grappled with how to interpret split opinions like today’s.

“Many litigants are sure to seek to argue for application of the plurality opinion,” said Douglas Berman, who teaches criminal law and sentencing at The Ohio State University Moritz College of Law.

The government appealed Haymond’s case to the high court after an appeals court struck down as unconstitutional a provision of the 2006 Adam Walsh Child Protection and Safety Act.

The law allowed the judge to put Haymond back behind bars after finding—without a jury and with less proof than beyond a reasonable doubt—that he violated release conditions.

Haymond’s original sentence on his child pornography convictions was 38 months, followed by supervised release.

After a probation officer alleged he violated release conditions—by possessing more child pornography and other violations—the judge agreed.

Under the Walsh act, the judge was required to put Haymond back in prison for at least five years. The judge imposed the minimum, though, under the law, Haymond could’ve been back in prison for life.

The government argued the law is an important one for protecting public safety and that full-blown trial proceedings aren’t required.

The Supreme Court sent the case back to the appeals court, for further review of what remedy Haymond is entitled to, now that the high court has ruled in his favor.

The case is United States v. Haymond, U.S., 17-1672, vacated and remanded. 6/26/19.

(Adds detail on opinions, context, and Berman comment. )

To contact the reporter on this story: Jordan S. Rubin in Washington at

To contact the editors responsible for this story: John Crawley at; Jessie Kokrda Kamens at