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Monday, July 8, 2019


Professor Fiona Doherty ’99 Cited in Two U.S. Supreme Court Cases on Supervised Release

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An article by Clinical Professor of Law Fiona Doherty ’99 was cited in two recent U.S. Supreme Court decisions on a common federal sentencing practice. Both cases — Mont v. United States and United States v. Haymond — concern supervised release in federal sentencing.

Doherty’s article, “Indeterminate Sentencing Returns: The Invention of Supervised Release,” appeared in the New York University Law Review in 2013. In it, Doherty provides an analysis of supervised release, a form of post-incarceration supervision that replaced federal parole under the terms of a 1984 statute. The statute that created supervised release was intended to make federal prison sentences determinate, or fixed in duration. Because of the way that supervised release has evolved, however, Doherty wrote that it has had the opposite effect, giving rise to “a muddled and unprincipled form of indeterminate sentencing.”

In Mont v. United States, the court considered whether a term of supervised release is tolled (or stayed) when a person is held pretrial on new criminal charges. The petitioner, Jason Mont, argued that he could not receive additional prison time for a federal supervised release violation because the term of his supervised release had expired while he was being held in state pretrial custody on a new charge. The court disagreed in a 5-4 ruling, finding that the clock had stopped during the period that Mont had been held in state pretrial custody because the pretrial custody was ultimately credited toward a new state sentence.

In the majority opinion, Justice Clarence Thomas ’74 wrote that “time in pretrial detention constitutes supervised release only if the charges against the defendant are dismissed or the defendant is acquitted.”

In the dissent, Justice Sonia Sotomayor ’79 wrote that the majority’s interpretation “creates a serious risk of unfairness” because people held in pretrial detention will not know whether they are bound by the conditions of their supervised release. While the majority believes that offenders can comply with those conditions by following prison rules, Sotomayor wrote that the terms of supervised release are “too broad to guarantee complete overlap with prison directives.” Sotomayor pointed to examples of supervised release conditions described by Doherty, including taking prescribed medications and undergoing periodic polygraph testing.

Doherty’s work was cited in the plurality opinion in United States v. Haymond, which concerns the right to trial by jury. Andre Haymond was convicted of possessing child pornography and sentenced to 38 months in prison and 10 years of supervised release. He was later sent back to prison for an additional mandatory five-year term for violating the conditions of his supervised release. He argued that the federal law that compelled his return to prison violated his constitutional right to jury trial. On June 26, the court ruled in his favor and Justice Neil Gorsuch cited Doherty’s article in the 5-4 decision.

“Only a jury, acting on proof beyond a reasonable doubt, may take a person’s liberty,” Gorsuch wrote. The decision places limits on the ability of the government to extend certain offenders’ prison sentences without a finding by a jury, as required by the Sixth Amendment.

Doherty teaches the Criminal Justice Clinic, the Advanced Sentencing Clinic, and a sentencing seminar. Her most recent scholarship analyzes the use of community supervision mechanisms (like probation and problem-solving courts) to facilitate guilty pleas and sort people for prison outcomes.