The Slatest

Gorsuch and Sotomayor Team Up Yet Again in Defense of the Sixth Amendment

Justices Neil Gorsuch and Sonia Sotomayor
Justices Neil Gorsuch and Sonia Sotomayor MANDEL NGAN/Getty Images

In 2002, Justice Antonin Scalia warned that “our people’s traditional belief in the right of trial by jury is in perilous decline.” His successor, Justice Neil Gorsuch, agrees—and he isn’t happy about it. On Tuesday, during oral arguments in United States v. Haymond, Gorsuch lambasted Congress’ efforts to skirt the Constitution by empowering judges to imprison sex offenders without the safeguard of a jury. It was a remarkable defense of the Sixth Amendment that points toward a broad decision restoring the jury trial right to some of the country’s most maligned defendants.

Haymond involves a federal statute that governs sentencing for certain defendants convicted of a sex offense. After completing their prison term, these offenders are placed on supervised release. If offenders violate the terms of their release, a judge can send them back to prison to serve more time for their original conviction. That’s standard practice in the federal system. The statute at issue in Haymond, though, is a different beast. Under this law, a judge must sentence offenders to additional prison time—from five years to life—if they violate the terms of their release. This new sentence may go beyond what the offender’s first conviction allowed. And the judge need only find proof of a violation “by a preponderance of the evidence.” No jury is involved.

This scheme is, to put it mildly, quite weird. Generally, under the Fifth and Sixth Amendments, the government must prove every element of a crime that increases a sentence to a jury, beyond a reasonable doubt. The law in Haymond flips this requirement on its head. It allows a judge to decide the facts herself, under a standard more lenient than the Due Process Clause typically requires. And once she has found the offender guilty, she can imprison him for much longer than his original conviction permitted.

On Tuesday, Gorsuch sounded downright shocked by this flagrant infringement of the Sixth Amendment. “Why is the government so anxious to avoid having the involvement of citizens in this process?” he asked Eric Feigin, assistant to the Solicitor General. “It would be a rather simple thing to convene a jury, wouldn’t it?

“Historically,” Gorsuch continued, “there’s never been this kind of system before. Congress self-consciously created this system. And I guess … I’m just struggling. I just don’t understand why the government resists the involvement of a jury of a man’s or woman’s peers.”

Gorsuch seemed rankled by the fact that Congress abolished parole for federal defendants, then sought to replace it with a draconian scheme like this one. Instead of parole, sex offenders now receive supervised release—but if they’re accused of a new misdeed, they lose their right to a jury trial. And if they’re found guilty (by a judge), they may be locked up for life. “We had parole systems previously,” Gorsuch said, “and Congress chose to abandon that system. And why doesn’t that choice have consequences? And why isn’t one of those consequences the jury right?”

As usual, Justice Sonia Sotomayor was right at Gorsuch side defending the Sixth Amendment. “Is there any other area of the law in which we permit imprisonment by a preponderance of the evidence?” Sotomayor asked Feigin. “I’m trying to figure out why a judge now gets to … find by a preponderance of the evidence, after you’ve been sentenced to the five years, that we really should have given you eight years.” If “a jury didn’t find facts sufficient to give him the additional years,” how can that sentence possibly be constitutional?

The answer is that it isn’t. And on Tuesday, a clear majority of the court seemed prepared to rule as much, either striking down the scheme altogether or compelling the government to prove each new offense to a jury, beyond a reasonable doubt. That would be an important victory for the Sixth Amendment, and an affirmation that the government cannot lock away sex offenders for life without a jury’s input. True, it might make prosecutors’ jobs a bit more difficult. As Scalia wrote in 2003, however, the jury trial “has never been efficient”—but “it has always been free.”