When a convicted sex offender on supervised release is accused of a new offense, how should they be sentenced? Should the penalty be the one for violating their supervised release terms, or should they be sentenced as if they had been convicted of the new offense?
In 2010, Andre H. was convicted of federal child pornography offenses. He was sentenced to three years in prison and 10 years of supervised release. A couple of years into his supervised release period, probation officers launched a surprise raid of his apartment. They seized his cellphone and several computers. The officers discovered several — perhaps five — images that they deemed to be child pornography, along with evidence that Andre had been searching online for sexually explicit material (which generally isn’t illegal).
Andre was charged with five counts of violating the terms of his supervised release. When it came time for sentencing, however, the judge based his sentence on a section of the federal criminal code, 18 U.S.C. § 3583(k), that calls for a mandatory, five-year minimum sentence for possession of child pornography while on supervised release.
He had been sentenced, not for violating his supervised release, but for the new possession of child pornography offense. But he had not been tried and convicted of the new offense; he had merely been accused.
Andre appealed, and the 10th Circuit Court of Appeals found that 18 U.S.C. § 3583(k) was unconstitutional, in part because “it imposes heightened punishment on sex offenders based, not on their original crimes of conviction, but on new conduct for which they have not been convicted by a jury beyond a reasonable doubt.’
The Justice Department has appealed to the U.S. Supreme Court, urging it to reverse the 10th Circuit and find 18 U.S.C. § 3583(k) to be constitutional. The high court has agreed to take up the case.
When defendants violate the conditions of their supervised release, they can be validly punished for that violation. The Constitution, however, requires a full and fair trial for any new offense. It should not be possible to penalize someone for a new offense without a trial, no matter how guilty they may appear based on their existing conviction. All criminal defendants have due process and other rights, and these rights are crucial if our justice system is to be considered fair by the citizenry.