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.
As usual, the high court didn’t explain why it rejected Burnett’s petition. The justices reject most of the thousands of appeals they receive annually, usually without any of them writing anything accompanying the denials.
That makes even a solo outing like Gorsuch’s noteworthy. His was the only such separate writing on Monday’s order list, the routine document on which the court publishes the latest action in pending appeals, mostly consisting of unexplained denials.
It takes four justices to grant review.
Gorsuch’s dissent isn’t surprising. Indeed, it’s only the Trump appointee’s latest distancing of himself from his colleagues on matters of crime and punishment, including jury rights.
He has been joined on similar issues by Democratic-appointed Justices Sonia Sotomayor and Ketanji Brown Jackson, such as when they signed on to his dissent in a 2024 sentencing case. He might need those two justices on board if he wants to realize his hope of the court taking up the supervised release issue in a future case.
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