Supreme Court Claims Certain Violations May Be Unconstitutional

On Tuesday, the Supreme Court heard oral arguments in United States v Haymond. As we have mentioned several times the background of Haymond’s case, we won’t go into full detail. However, because of a previous sex offense, Haymond was violated under 18 USC 3583(k) which provides for a mandatory minimum five year violation because he had additional CP on his phone and possibly up to life.

Practically all the justices agreed that violating Haymond and sending him back to prison for five years minimum (when the MAXIMUM for every other non sex offender is five year) is probably unconstitutional because it finds a defendant guilty based on a preponderance of the evidence and not beyond a reasonable doubt. This is really what brought about Booker in the first place. The arguments basically only lasted around 20 minutes. So what happened for the next 40 minutes? Well, the Court basically thought of how they could remedy the issue.

While the Court can’t actually change the law, they can offer suggestions to Congress. Some of the suggestions were including the government’s argument that a grand jury could be enpaneled for any violation that would enhance a sentence. While this was approached, the idea behind this could be astronomical expense wise if every violation would possibly have to have a grand jury find the releasee violated as opposed to just a judge.

Another idea the Court brought up was sentencing a defendant to a supervised release term only in the range of the actual sentence itself. Based on my reading, this would mean if a statute said a prison sentence of 5-20 years, the releasee could also only receive supervised release for 5-20 years.

The big point came about when the Government tried to argue supervised release was like parole. This was also the Court’s point of view back in Johnson in 2000. However, Justice Sotomayor interrupted and said it was not, thus it was like comparing “apples to oranges”. In parole, a releasee is given leniency in exchange for following a strict set of conditions. Under supervised release, their is no leniency. You do your entire sentence (minus good conduct time which falls under a completely separate statute) and then you are forced to do another sentence.

Justice Gorsuch made a good point and said what if the five year minimum was replaced with death penalty. Therefore, just because the probation officer feels you did a violation, you would be killed and the public would never really know why you were executed. Haymond argued that section (k) was unconstitutional because of the non-jury based enhancement, but the arguments really opened up a whole realm of new arguments with the Court. Some of these have been asked dozens of times already, but are just now getting the attention they deserve.

So what does this mean for sex offenders and supervised release? Well assuming the Court rules in favor of Haymond, which it appears likely to do, this could possibly invalidate section (k) as a whole. Thus, since everything from the five years to lifetime supervision subsection, the new sex offense subsection and all the other parts of section (k) that are ran together COULD be unconstitutional as a whole. However, we won’t know for sure until a few months down the road.

Only Justice Alito was questionable if fixing this problem would throw supervised release into a conundrum? Well, yes, it would. And, it’s about time it did to prove the illegality of it and how sex offenders are treated unfairly simply because of the crime committed.

In addition, the Court also heard arguments in Mont v United States. While that case didn’t receive as much attention as Haymond, after back and forth arguments and questioning, the Court seemed to agree with Mont that while you are on pretrial release for another crime, supervised release continues to run. However, it will be interesting to see how this case plays out.

In my opinion, Haymond could be a 9-0 victory, however, with several concurring opinions for different reasons, while Mont could be a 5-4 split. Opinions for both are expected around May or June.


BackSoSoon is a blog dedicated to helping sex offenders successfully reintegrate back into society. Our Corrlinks address is and our website is

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