Judging the Judges
Term Year: 2018
United States, Petitioner v. Andre Ralph Haymond
NAME: United States, Petitioner v. Andre Ralph Haymond
JOINING: Ginsburg, Sotomayor, Kagan
JOINING: Roberts, Thomas, Kavanaugh
I am not a lawyer. I have not studied the law... at least, not in any formal sort of way. And my knowledge about the underlying issues (around which this case revolves) is informed in large part by the three Opinions in This Case... which differ substantially... indicating (to me, at least) that things may not be what they seem.
Finally (and as always), one will (or at least, may) be best served by doing their own research and consulting the base documentation directly.
The Federal Government no long has Parole. This was retired in 1984 (you know, if I'm recalling the date correctly). And how Parole used to work was that a convict was given a Prison Sentence of Determined Length, tended to serve an Indeterminate Amount of that sentence, and served the remainder on Parole. If Parole was revoked (by a Judge in what I will call an Administrative Procedure), the convict returned to Prison to serve out their Sentence, possibly being released on Parole, again, at a later time.
Prison Sentence -> Time Served + Parole
The Dissent explains why this didn't work (or was unacceptable) by giving the example of someone given a Life Sentence, which for Parole purposes counted as 30 Years in Prison. Now, I am going to guess that Thirty Years is how long folks tended to last in prison. But then, maybe, it was just a random number. Anyway, after serving Ten Years a prisoner could be released on Parole. Thus, a prisoner could potentially be released after serving a third of their sentence, handily converting a Life Sentence (in many cases... or at least, some cases) to Ten Years + Life Parole.
And there is a big difference between squirrelling someone away in prison forever (which is what most folks, I presume, would expect out of a Life Sentence) and letting someone out on Parole after only serving Ten Years.
Under the current system of Supervised Release, both the Convict's Prison Time and time to be spent in Supervised Release are Determined at the time of Sentencing.
Sentence = Time in Prison + Supervised Release
And although there is an allowance for Good Behaviour, even that is Pre-Determined. And one would have to look this up to be sure (something which I am not going to do), but I believe 1 Year off a 10 Year Sentence for Good Behaviour is a reasonable guess.
That's all background.
As I understand The Case (given that I am relating these so called facts
from memory and my reading comprehension leaves something to be desired):
- Mr Hammond was on Supervised Release.
- Mr Hammond broke the Terms of his Supervised Release.
- I think Mr Hammond might contest this.
- Based on how Mr Hammond (allegedly) broke the Terms of his Release, a Mandatory Minimum Stay in Prison was imposed.
- In rough numbers (going by memory as the details are hardly important), Mr Hammond had 2 Years to go on his Supervised Release, but the Judge (by Statute) was compelled to send him away for an Additional 5 Years...
- Arbitrarily (or so I will say) increasing Mr Hammond's Sentence after the fact.
The Court says that a Defendant may request (and/or insist upon) a Jury Trial in such an instance.
The Dissent disagrees.
What's more interesting is that the Dissent believes this Decision (if it were a Decision agreed to be a Majority of The Court; and thus, set precedent, which it does not) implies that any Revocation of Supervised Release entitles one to a Jury Trial.
Now, originally, I did not read The Court's decision that way. But I can see (even if I don't care about) The Dissent's point of view in this regard after thinking about it for awhile.
In the Old Parole System, Parole (early release from Prison) was a Gift. And as such, Revocation of Parole was nothing more than a cancelling of a Gift.
In the New Supervised Release System, Supervised Release is a Right. And as such, Revocation of Release is a Penalty.
Or at least, I believe this is why The Dissent fears The Court's Opinion... in that, assessment of a New Penalty does, indeed, seem like something to which the Right to a Trial By Jury would attach.
Like I said, at first, I did not agree with The Dissent's reading of The Majority's Opinion... as the Majority says no such thing.
As I read it, The Majority merely holds that if an increased Prison Sentence is to be imposed, a Jury Trial is Indicated.
But then, the more I think about it, the more I am convinced revocation of Supervised Release is a New Penalty.
Upwards of 80% (I believe this is the figure, it may actually be a bit higher) of all Criminal Trials are settled with a Plea Bargain. This Plea Bargain would (typically, I believe) stipulate the Punishment... in full.
Thus, a Stipulated Time in Supervised Release, is just that, a Stipulated Time... as agreed to by all parties or as dictated by a Judge.
And I am hard pressed to believe that the appropriate Penalty for failing to comply with the Terms of one's Supervised Release should be anything more than a Push.
"Well, ya see, you didn't come in for your Supervised Release meeting last month, so I really can't give you credit for it. But no matter, we'll just add that month on to the backside and that'll be that."
At first glance, this may seem unworkable. Why would a person on Supervised Release ever comply with the Terms of their release if the Maximum Penalty for Non-Conformance is a simple Push?
Supervised Release Revisited
I am no expert, but I am going to guess (and it really is just a guess) that there are two major components to Supervised Release.
- Loss of Rights
- Search of Premises (Day or Night) Without Warrant or Reason
So, like, when I think Supervised Release, I think Parole. And when most folks think Parole, I am going to guess they imagine Weekly Meetings with a Parole Officer.
But I do not believe it is a failure to attend those Weekly (Monthly, or whatever) Meetings that sends most folks back to Prison. I think what tends to happen (i.e. what follows is rumour, supposition, and conjecture) is that the Bad Guy (and for the purposes of our example, let us assume he is partial to the pronouns of he, his, and him) is let out on Parole (call it Supervised Release). For a month or two, he is left more-or-less alone. And then, a visit is paid to his abode at a time when he is supposed to be there by Members of the Law Enforcement Community.
- If he is not there...
- And if he is there...
- Are there any Drugs in the dwelling?
Note (as I understand these things): It is (typically) a violation for someone on Supervised Release to be ANYWHERE where Drugs or Weapons are present or where ANY illegal activity is taking place. Thus, if one's room-mate has a Weapon, that's a potential violation... even if the person on Supervised Release is not aware of the presence of said Weapon.
And the wonderful thing (from a Law Enforcement perspective) about all of this is that A Warrant Isn't Required! Suspicion Isn't Required. Well, I mean, he's a Convict. And once a Felon, always a Felon, that's what I say. But one need not have Probable Cause.
From beginning to end, the entire visit is a Fishing Expedition... and one doesn't even have to prove the Felon owns, knows about, or had anything to do with the Fish. The presence of Fish (Drugs, Weapons, Whatever) is all that is required.
Further, I am led to believe (however erroneously) that these searches (please, call them Fishing Expeditions, as that's what they are) are done as a matter of course.
Maybe they are.
Maybe they are not.
What I do know is that I have heard stories about the Bad Guy (or a Bad Guy, I guess it was just the one) who was released from Prison and who within the first month had acquired a few guns and a bit of get me high, so when the cops did their routine search a few weeks later, he had more than enough contraband to send him away forever.
New Drug Charges.
New Weapon Charges.
I mean, I was flat out told by a Member of the Law Enforcement Community that it could be prudent to release a Bad Guy a bit early, because you just know he wouldn't (or won't) be able to maintain, and getting the conviction is just that much easier if one doesn't have to worry about Probable Cause, getting a Search Warrant, and so on and so forth.
Take it for what you will.
This is my belief.
This is my lens.
I don't have a problem converting Supervised Release to Prison Time based on a Violation.
But if the intent (or the functional result) is to Add Time, a Jury Trial is indicated.
Now, I really don't know my Bible all that well. But I am led to believe that a time or two (in the World's short 6,000 Year History) an Angel (or two) visited Earth and could find precious few Humans that were not Living in Sin. Entire Nations (call them Tribes) were laid to waste time and time (or so, my Bible tells me so), because entire populations were unable to abide by God's Law.
I believe Modern Law is every bit as Psychotic. In that, I wonder (in a very serious way) that if we were to follow every American around for a day (just a single day) would a single American (out of the lot) be able to refrain from breaking a single law... no matter how minor.
Not everyone breaks a law every day.
I certainly know I try not to.
But then, is not my very existence a crime against nature?
But more seriously, I think it is very likely a certain segment of the population habitually breaks a law or two without knowing that they are in violation... by, perhaps (where it is illegal), smoking too close to their neighbours doors or windows, parking on the street, letting their dog run loose in the front yard, or something seemingly trivial or minor like that.
I'm not suggesting we are a Country of Murderers.
But there are quite a few laws on the books that haven't been enforced in years... and others that concern matters so trifling and small that no one even knows that such a law exists.
Meaning, I likely overstepped my bounds, when I said everyone was a lawbreaker, as it's highly unlikely those in comas, hospital beds, and nursing homes (not to mention, those deemed unable to break any law by virtue of their mental deficiencies and resulting lack of mens rea
) break very many laws.
Rather, I'm wondering what's the rate of maleficence in the population at large?
I mean, between tossing cigarette butts on the ground (littering), swearing in public (disturbing the peace, public indecency), driving offences (speeding, if ever so slightly, rolling stops, failing to use one's turn signals), and so on and so forth (thus, between all the trifling minor offences out there), How often does the Average American break The Law?
What is the average age of first sexual experience? Was this sexual experience (strictly speaking) legal?
On average, at what age do individuals first experiment with alcohol? What percentage of these individuals are (strictly speaking) breaking the law the first time they drink alcohol?
What percentage of Americans have ingested an illegal substance?
And then, what is the penalty for these things?
Are they reasonable?
Would you be willing to send your children to jail for committing any of these infractions?
It's a rant all to itself.
During Supervised Release, 'the government conducted an unannounced search of his computers and cellphone', finding thirteen 'images that appeared to be child pornography' and which a Judge determined he knowingly possessed.
Mr Hammond was not afforded a Jury Trial.
He was subsequently Sentenced (he was essentially convicted and sentenced based solely on the opinion of one judge) to additional time in Prison.
I would put it to you that if a society deems it worthwhile to deprive someone of their liberty, a Jury Trial is appropriate.
And if said Society cannot be bothered with the time, expense, and trouble of a Jury Trial, perhaps it should not be depriving one of its members of their liberty.
Of course, with that said, I will remind one that the vast bulk of Jury Trials are currently bypassed by offering reduced sentences (and/or dropping more severe charges, which amounts to the same thing) for Accepting a Plea. And I am sure the same mechanisms would play out the same way for Revocation of Supervised Release as they do for initial convictions.
Mr Hammond got a few more years.
As I understand it, he could have gotten life.
And with that sort of threat hanging over his head, it's hard to believe he wouldn't have copped a plea.
The Court does not discuss Child Pornography nor provide any details concerning the images in question.
As such, I think it is prudent to push any discussion of that issue until such a time as The Court weighs in on the matter and addresses it head on.
But that said (and for the most, because I can't help myself), I will posit that any discussion of Child Pornography would be thorny, indeed, dealing with such intertwining issues as:
- Child Slavery
- Child Assault
- Child Rape
- Child Molestation
- Obvious Evils
- I need not put forth any examples.
- Confounding Social Values
- Where do you think the slang For Science came from?
- Market Forces
- Freewill & Personal Expression
- Personal Autonomy
- The World is a complicated place full of compromise.
- A Possessor's Acts
- A Possessor's Knowledge
- Further Confounding Variables
- After all, at what point does something become of Historical Interest?
- Or the enforcement of a law become Random and Capricious?
It's a vague, incomplete, and haphazard list to be sure. But the complexities and nuance involved underscore (to me, anyhow) the utter hopelessness of codifying such an idea and the need for a Jury Trial to thread that needle on a case by case basis.
For those who believe threading that needle is trivial and easy, I would suggest that identifying Child Pornography as Child Pornography is Tautologically Trivial. After all, Child Pornography is (by definition) Child Pornography and being outraged by that which is outrageous takes little mental effort. But to delineate the line in advance, in writing, in a way that an arbitrary third person can understand (and therefore, enforce) and which conforms to the Average American's conception of Good & Evil (of what is decent and allowable and what is indecent and therefore worthy of punishment) is a lot harder than it might at first seem.
I will finally note that the judge who revoked Mr Hammond's Supervised Release handed down his sentence under protest.
He was upholding the law, not his conscience.
Whereas, I feel that one's conscience (call it Morality) should trump The Law at every step and turn.
And I will define Morality (or more accurately, the absence, thereof) as those actions for which a properly empanelled Jury is willing to send another to Prison.
If you wouldn't send your own Child to Prison for the Offence, don't send somebody else's.
Judging the Judges
© copyright 2020 Brett Paufler
A Personal Opinion/Editorial