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U.S. SENTENCING GUIDELINES — SUPERVISED RELEASE

Case: Johnson v. United States

Issue: Whether a district court can impose an additional term of supervised release following re-imprisonment for a violation of the original supervised release conditions.

Facts: The Sentencing Reform Act of 1984 eliminated most forms of parole in favor of supervised release, a form of postconfinement monitoring overseen by the sentencing court, rather than the Parole Commission. 18 U.S.C. §§3583. If a condition of the supervised release is violated, the sentencing court can, and could when Johnson was originally convicted, "revoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release without credit for time previously served on postrelease supervision." This was authorized pursuant to § 3583(e)(3). That subsection, while allowing re-imprisonment, does not explicitly allow imposition of a new term of supervised release.

In 1993, Johnson committed a Class D felony, for which he was sentenced in March 1994 to 25 months imprisonment to be followed by three years of supervised release. He was released from prison and began serving his three year term of supervised release in August 1995. With two and one-half years remaining on his supervised release sentence, he committed another felony and therefore violated one of the conditions of his release. The District Court subsequently sentenced him to 18 months in prison and 12 months additional supervised release. The district court did not articulate the statutory basis for its imposition of the new term of supervised release, though it might have based its ruling on 18 U.S.C. §3583(h), in effect as of September 13, 1994, which explicitly gives district courts the power to impose another term of supervised release following imprisonment.

Johnson appealed his sentence, arguing that the trial court lacked authority under § 3583(e)(3) to impose a new term of supervised release and that applying §3583(h) retroactively violated the Ex Post Facto Clause of the Constitution. The Sixth Circuit affirmed the district court’s ruling, reasoning that the additional term of supervised release was punishment for Johnson’s violation of supervised release conditions, and not for his original crime. Since this supervised release violation occurred after September 13, 1994, the sentence was not retroactive and therefore did not violate the Ex Post Facto Clause.

Holding: As a matter of statutory interpretation, §3583(h) cannot be applied retroactively. As a further matter of statutory interpretation, §3583(e)(3) empowers a judge to impose an additional term of supervised release following re-imprisonment for a violation of one of the original supervised release conditions. Thus, the Court upheld Johnson’s sentence.

Reasoning: The Court, in an opinion by Justice Souter, first rejected the Sixth Circuit’s holding that that §3583(h) applied to the violation of the terms of supervised release and not the original crime. The Sixth Circuit’s ruling would make any violation of supervised release a criminal act. Serious constitutional questions, therefore, arise if the sentencing judge is allowed to impose a punishment for these crimes based on a preponderance of the evidence and not on a separate prosecution and conviction by a jury finding guilt beyond a reasonable doubt. To avoid these issues, penalties associated with the revocation of supervised release must be attributed to the original offense.

Given this, to sentence Johnson to a further term of supervised release under §3583(h) would constitute a retroactive application of this section, since it was adopted in September 1994 and Johnson’s crime was committed in 1993. But, the Court reasoned, before an ex post facto analysis can even begin, it must be established that Congress intended for §3583(h) to be retroactively applied. Absent such intent, the Court will not "give retroactive effect to statutes burdening private interests". The Government offered nothing in this case to suggest that §3583(h) was meant to be applied retroactively. Thus, given the Court’s longstanding presumption against retroactive application of legislation, the sentencing court could not apply §3583(h) to Johnson and the ex post facto issue did not arise. Rather, the case centered around whether any other part of the 1984 Sentencing Reform Act, specifically 18 U.S.C. §3583(e), gave the sentencing judge authority to impose an additional 12 months of supervised release on Johnson following his re-imprisonment.

§3583(e)(3) authorizes a district court judge to "revoke a term of release" and to require "all or part" of that time to be spent in prison. The Court opined that the term "revoke" does not imply a termination of supervised release. Rather, it means "to call or summon back". Thus, the original supervised release sentence retains some vitality after revocation, and the sentencing judge may determine how much of the original sentence will be served in prison and how much on supervised release.

This interpretation, according to Justice Souter, is consistent with public policy. The congressional policy behind the Sentencing Reform Act was to improve the likelihood of a successful transition from prison to liberty. Supervised release is designed to do this. When the judge finds supervised release appropriate, therefore, it would be contrary to public policy to forbid the re-imposition of part of the original supervised release sentence after time has been served in prison. Additionally, this reading is consistent with pre-Sentencing Guidelines procedures which governed the violation of and subsequent re-instatement of parole.

Other Opinions: Justice Kennedy agreed with the Court regarding the authority of the district judge to allocate the remaining portion of an original sentence between prison and supervised release. Kennedy, however, disagreed with the Court’s passing suggestion that the sentencing judge could "presumably" extend the original term of supervised release, pursuant to §3583(e)(2), prior to revoking it, in order to "allow the term of imprisonment to equal the term of supervised release authorized [by statute] for the initial offense," as the current version of §3583(e)(3), also amended effective September 13, 1994, explicitly allows. Kennedy argued that "the term of imprisonment [after a violation of the terms of the original supervised release] plus any further supervised release must not exceed the original term of supervised release that had been imposed and then violated."

Justice Thomas concurred with the Court’s textual analysis of §3583(e)(3). He also agreed with Justice Kennedy and stated that the Court’s discussion of additional supervised release time was unnecessary to the result.

Justice Scalia dissented, arguing that the word "revoke" means "to annul by recalling or taking back." To hold, therefore, that the original supervised release sentence is not terminated upon re-imprisonment is not to define "revoke" in its ordinary and natural meaning. Using the ordinary and natural definition leads to the conclusion that since the supervised release sentence is terminated, there is no authority to re-impose it after additional prison time. Scalia further noted that appealing to pre-Guideline practices and parole procedures, as the Court did, cannot overcome the lack of statutory authorization for additional supervised release in cases in which the original conditions were violated.