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.