You might think that before someone goes to jail they need to plead guilty, or that a jury needs to find them guilty beyond a reasonable doubt.
But when convicted defendants violate the terms of their supervised release, judges can still jail them without a jury based on a lower “preponderance of the evidence” standard — even if their total time served exceeds the maximum time the judge could lock them up at the time of original sentencing.
Justice Neil Gorsuch was the only one to express concern about the phenomenon on Monday, taking issue with the court’s refusal to consider the issue in Jalen Burnett’s case.
Burnett pleaded guilty in New Jersey federal court to transporting persons in interstate commerce to engage in prostitution. He was sentenced to 105 months in prison, followed by 15 years of supervised release. The maximum sentence he faced at sentencing was 120 months. But because the judge found release violations based on a lower evidentiary standard, his detention was longer than that: 132 months.
His attorneys petitioned the judge, arguing that the Constitution provides people with a right to a jury when supervised release violations could result in a sentence longer than the maximum they faced when initially sentenced. They argued that when the original maximum period is exceeded, “it is effectively a new penalty involving jury rights.”
Gorsuch took issue with the court’s refusal to review Burnett’s case, saying the defense was “not asking for much.” The judge noted that Burnett was not generally opposed to being held in jail or to a lower evidentiary standard for violating his release.
“Mr. Burnett asserts the right to have a jury decide any disputed fact based on a reasonable doubt standard, and as here, the court seeks to impose a sentence that would result in defendant’s total incarceration exceeding the statutory maximum authorized by Congress for his underlying conviction,” Gorsuch wrote.
“I will consider that argument through this case,” the judge continued, calling his colleagues’ failure to resolve the constitutional issue “unfortunate.”
He concluded by expressing hope that the court “will soon hear another case like his — and in the meantime, lower courts will more carefully consider the application of the Sixth Amendment in this regard.”
The Justice Department objected to the high court’s review, saying the defense frame-up misconstrued the punishment imposed at the original sentencing. The U.S. Department of Justice noted that supervised release is an independent component of the sentence and is not subject to the maximum prison time originally imposed.
As usual, the high court did not explain why it rejected Burnett’s petition. Every year, judges dismiss most of the thousands of appeals they receive, and often no one writes anything to accompany the dismissal.
That makes even a solo outing like Gorsuch’s worthy of attention. His was the only solo entry on Monday’s order list, a routine document in which the court releases the latest action on pending appeals, much of which consists of unexplained denials.
Four judges are required to review.
Gorsuch’s opposition is not surprising. In fact, it’s just the latest in a Trump appointee’s move to distance herself from colleagues on issues of crime and punishment, including jury rights.
Democratic appointees Justices Sonia Sotomayor and Ketanji Brown Jackson have joined him on similar issues, such as when they signed a dissent against him in a 2024 sentencing case. He may need both justices if he wants to realize his hopes of the court addressing supervised release in future cases.
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