Constitutional Limits on the Imposition and Revocation of Probation, Parole, and Supervised Release After Haymond
Nancy J. King | 76 Vand. L. Rev. 83
In its Apprendi line of cases, the Supreme Court has held that any fact found at sentencing (other than prior conviction) that aggravates the punishment range otherwise authorized by the conviction is an “element” that must be proved beyond a reasonable doubt to a jury. Whether Apprendi controls factfinding for the imposition and revocation of probation, parole, and supervised release is critically important. Seven of ten adults under correctional control in the United States are serving terms of state probation and post-confinement supervision, and roughly half of all prison admissions result from revocations of such terms. But scholars have yet to confront the effect of the Court’s Apprendi rulings on the regulation of conditional release in the states. This Article takes on that project.
The Article makes three contributions. First, it explains why and how the Apprendi doctrine applies to judicial findings at initial sentencing that either lengthen the term of conditional release an offender must serve or mandate incarceration instead of conditional release. State courts continue to divide on these questions.
Second, regarding factfinding at the revocation stage, the Article tackles the many questions left open by the Court’s only effort to consider Apprendi in the revocation context—United States v. Haymond. The Article defends two due process analyses, derived from past precedent and Justice Breyer’s controlling concurrence in Haymond, that are better suited than the Apprendi doctrine to protect against legislative overreach in the revocation context. Scholarship discussing Haymond has barely mentioned Justice Breyer’s analysis. This Article gives his controlling concurrence the attention it deserves. Combined, these due process analyses provide a sound middle ground between the rigid application of Apprendi’s rules to conditional release and the limitless use of revocation to punish new criminal conduct.
Third, the Article applies these analyses to state statutes governing the imposition and revocation of probation and post-confinement supervision. This long-overdue state-centered focus provides needed guidance for policymakers designing conditional release policies that reserve more punitive sentences for more egregious cases.
Nancy J. King