Re-Imprisonment Without a Jury Trial: Supervised Release and the Problem of Second-Class Status

The Supreme Court’s 2019 decision in United States v. Haymond shone a light on a practice that has not yet received attention commensurate with its significance: the re-imprisonment of individuals on supervised release without a jury trial. At first blush, the decision is most notable for setting bounds on the government’s ability to re-imprison individuals on supervised release without observing the constitutional rights normally available to defendants in criminal prosecutions. However, examination of the opinions reveals that the decision’s immediate doctrinal impact was quite limited. Moreover, although the three opinions issued in the case reflected disagreements among the Justices, all of the Justices nevertheless took for granted a proposition that ought to be recognized as remarkable: namely, that it is acceptable for individuals released from prison to be subjected for extended periods of time to a status of significantly diminished constitutional protection.

This Article challenges the practice of re-imprisoning individuals on supervised release without the normal constitutional protections, contending that its current widespread acceptance is based on underlying assumptions that do not hold up to scrutiny.