The Yale Law Journal

March 2024

Apprendi, Punishment, and a Retroactive Theory of Revocation

Criminal LawCriminal ProcedureConstitutional LawCivil-Rights Law

abstract. In Apprendi v. New Jersey, the Supreme Court announced what is now a seminal rule of constitutional criminal procedure: any fact that increases the penalty for a crime beyond the prescribed statutory maximum cannot be found by a judge, but must be submitted to a jury and proved beyond a reasonable doubt. The doctrine arising from Apprendi and its descendant cases had, until recently, been confined to the sentencing context. But in 2019, the Court in United States v. Haymond considered a potential expansion of Apprendi to judicial revocations of federal supervised release. The Court ultimately handed down a 4-1-4 decision with minimal precedential value, but sincethen, there has been a swell of scholarship discussing the applicability of the jury right to this new context. Much of this discussion has centered around the questions of constitutional interpretation raised by Haymond, and whether a revocation proceeding is part of a “criminal prosecution” as specified by the text of the Sixth Amendment.

This Note argues for a different approach. Revisiting the Apprendi cases and their contemporary scholarly treatment reveals that the doctrine was rooted not in novel methods of textual interpretation, but in fundamental principles of substantive criminal law: what constitutes “crime” and “punishment.” Existing scholarship has not provided an answer to how these principles might apply to a function that takes place after sentencing and final judgment, like revocation of supervised release. I therefore introduce a retroactive theory of revocation that rationalizes Apprendi’s definition of crime and punishment within this context. Under this theory, revocation proceedings are unconstitutional not because they are directly covered by the Sixth Amendment right to a jury trial, but because they circumvent a person’s original jury trial by allowing them to be “punished” for a different “crime.” This means that every revocation of supervised release violates Apprendi. Moreover, the retroactive theory suggests that other forms of post-judgment penalties, like extensions of probation and criminal fees, can similarly run afoul of the Sixth Amendment’s protections.

author. Yale Law School, J.D. 2024; Princeton University, B.A. 2018. Special thanks to Jenny E. Carroll for her guidance and support, and without whom this Note would never have been written. I am also indebted to Eric Fish, Pragya Malik, and Yixuan Liu for comments on earlier drafts, and to Kenneth P. Coleman and the editors of the Yale Law Journal for greatly improving this Note through their thoughtful feedback.


The role of the criminal jury as the ultimate arbiter of guilt is a notion that is deeply embedded in the American psyche. Even today, as the frequency of criminal jury trials remains at historic lows,1 televised, high-profile criminal trials like those of Ted Bundy,2 O.J. Simpson,3 and more recently Derek Chauvin4 have maintained Americans’ familiarity with the drama and suspense of waiting for a foreperson to utter those fateful words: “guilty” or “not guilty.”

But in a series of twenty-first-century cases, the Supreme Court seemed to suggest that the jury had a similarly significant role to play in criminal sentencing, the determination of appropriate punishment for an offense.5 In Apprendi v. New Jersey, Charles C. Apprendi, Jr. was convicted of an offense carrying a statutory maximum of ten years of imprisonment.6 During sentencing proceedings, a state judge found that his crime was racially motivated and, as a result, sentenced Mr. Apprendi to twelve years in prison.7 TheSupreme Court reversed, famously holding that except for the fact of prior conviction, “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”8

Apprendi was, by all accounts, a seminal decision in the law of criminal procedure.9 It appeared to declare for the first time that the criminal jury had a constitutional role to play not only in deciding between guilt and innocence, but in sentencing—determining how severe a guilty person’s penalty should be.10 While Apprendi is often described as establishing strict, formalist rules for sentencing, the doctrine is based on the functionalist idea that a judge’s sentencing decision can encroach upon the province of the jury by imposing a penalty greater than what was authorized by the jury’s verdict.11 In the ensuing decades, the Court continued to build on this principle, extending Apprendi to the capital context,12 invalidating enhancements under state sentencing schemes,13 and rendering the Federal Sentencing Guidelines advisory.14 At the 2004 Ninth Circuit conference, Justice Sandra Day O’Connor remarked that the Apprendi expansion to state sentencing guidelines had caused a “[n]umber 10 earthquake” in criminal sentencing.15

Today, the next potential candidate for Apprendi’s expansion is the institution of federal supervised release, the dominant form of criminal supervision in the federal system.16 While commonly spoken of in the same breath as probation and parole,17 federal supervised release is a unique system of criminal supervision because it is imposed in addition to a term of imprisonment, rather than as a form of relief from an existing prison term.18 For example, in a traditional state parole system, a person may be granted parole after serving one-half of their prison sentence.19 If their parole is revoked, they would return to prison to serve at most the remainder of that original term of imprisonment.20 On the other hand, an individual on federal supervised release has by definition already served their term of imprisonment imposed by the sentencing court. When a judge revokes a term of supervised release, she thus necessarily imposes new prison time on top of what was previously administered. Notably, this means that revocation of supervised release imposes additional punishment without the protection of a jury trial21—a concern quite similar to that expressed in the Apprendi line of cases.

In 2019, the Supreme Court weighed in on the potential constitutionality of this procedure in the case United States v. Haymond.22 At issue was a particular provision of the supervised-release statute that mandated a minimum revocation penalty of five years’ imprisonment for enumerated violations.23 The Haymond Court ultimately failed to reach a consensus, handing down a divided 4-1-4 decision that left supervised release in “constitutional limbo.”24 The plurality opinion, authored by Justice Gorsuch, found that Apprendi and its progeny applied in this new context for the supervised-release provision in question.25 Notably, Gorsuch also contemplated the potential consequences of applying Apprendi to the entirety of the federal revocation statute.26 Perhaps in an attempt to assuage the concerns of the concurrence and dissent, he suggested that even in a world in which Apprendi applied in full, only a small fraction of revocations would be implicated, thereby leaving much of the supervised-release system intact.27 Nevertheless, Justice Breyer concurred in the judgment only, declining to “transplant the Apprendi line of cases to the supervised-release context” “in light of the potentially destabilizing consequences.”28 Similarly, in his dissent, Justice Alito decried the “potentially revolutionary implications” of the plurality’s reasoning and accused the plurality of “laying the groundwork for later decisions of much broader scope.”29

While Justices Gorsuch and Alito were bitterly divided in their conclusions, both engaged heavily in textual interpretation of the Sixth Amendment, particularly around the meaning of the term “criminal prosecution.”30 Alito argued that because revocation occurred after a criminal prosecution, it fell outside the scope of the constitutional right to a jury trial.31 He further emphasized that because there was no Founding Era analog to a revocation proceeding that a jury would have adjudicated, a revocation hearing was not captured by the original meaning of the Sixth Amendment.32 Gorsuch, too, spent considerable time mustering up historical support to explicate the traditional role of the criminal jury.33 But in interpreting the text of the Sixth Amendment, he adopted a highly functionalist understanding of “criminal prosecution” that accommodated the various developments to the criminal legal system since the Founding, including supervised-release revocations.34

Since Haymond, there has been a considerable swell of scholarship surrounding the applicability of the Sixth Amendment jury right to supervised release and criminal supervision more broadly.35 While scholars have reached differing conclusions on the question, many have similarly centered their discussions on determining whether a revocation proceeding is properly contained within the meaning of “criminal prosecution.”36 Modern discourse has thus left the distinct impression that the fate of supervised release rests on a question of textual interpretation. More simply, the Justices and scholars both seem to ask whether individuals facing revocation have been denied a right that the Sixth Amendment directly confers.

This Note argues for a different approach. The constitutional problem with revocation of supervised release is not that it involves the kind of proceeding contemplated within the meaning of the Sixth Amendment.37 It is that revocation circumvents the protections offered by the Sixth Amendment by allowing a government to punish someone without initiating or executing a criminal prosecution. Individuals who are sent back to prison following a revocation have not technically been deniedthe right to a jury trial. After all, a person facing revocation of supervised release is serving a term of supervision due to a criminal conviction. By virtue of that conviction, they have either already received a jury trial or waived their right to one via a guilty plea. The constitutional violation thus arises from the erosion of the jury trial that was already granted, for revocation imposes punishment beyond what was authorized by the jury’s guilty verdict.38

This formulation is, in fact, the very approach used by the Apprendi line of cases before Haymond. Apprendi did not rely on any novel textual interpretation of the Sixth Amendment to reach its primary holding. It instead advanced principles of substantive criminal law, using the historical link between crime and punishment to establish a functionalist definition of a “crime.”39 Under this conception, a sentencing enhancement that exposed a criminal defendant to greater punishment constituted an “element” of a new, more serious offense.40 Punishment based on such an enhancement therefore could not be said to be genuinely based on the original “crime” of conviction. Despite Apprendi’s unmistakable significance in the world of criminal sentencing, then, the decision should not be understood as “extending” the right to a jury trial to sentencing proceedings. Rather, Apprendi and its descendant cases recognized that the jury’s traditional role in determining guilt could not be circumvented by sentencing judges who imposed punishment in excess of the jury’s implicit authorization.41 Apprendi thus doubled down on the criminal jury’s historic role as the ultimate arbiter of guilt, zealously guarding the right to a jury trial at conviction against potential erosion.

Today, preoccupation with the effects and mechanics of Apprendi’s formalist rule in sentencing procedures has largely sidelined this aspect of the doctrine. But early scholarly treatment of Apprendi highlighted the significance of the Court wading into the territory of substantive criminal law,42 an area that it has historically been quite reluctant to approach.43 This much-needed intervention provided important clarity for understanding the relationship between crime and punishment, which in turn has had important consequences for how criminal sentencing procedures are to be structured. Judge Stephanos Bibas recently remarked that in this way, Apprendi “linked criminal procedure to substantive criminal law.”44

I contend that the lack of engagement with these aforementioned substantive criminal law principles has left a significant gap in the literature for properly understanding revocation within the context of Apprendi and the Sixth Amendment. For one, arguing solely on the grounds that a revocation proceeding is captured by the text of the Sixth Amendment leaves one vulnerable to originalist reasoning like that of Justice Alito’s Haymond dissent and his formalist argument that the jury right simply has no applicability after the conclusion of a “criminal prosecution.” But additionally, a failure to grapple with how Apprendi’s understanding of “crime” and “punishment” might fit into the modern federal criminal system and its invention of the revocation function have led even proponents of Apprendi’s expansion to endorse only a tepid application of the Sixth Amendment with narrow implications for the constitutionality of revocations.45

This Note thus presents a new conception of revocation under what I call the “retroactive theory” of revocation, which takes seriously the substantive criminal law principles of Apprendi and how it might be imported into the supervised-release context. It also takes into account the nonconcurrent nature of initial sentencing and revocation, which I argue is crucial to understanding the relationship between the punishment imposed by revocation and the factual basis for that punishment. The retroactive theory will have important implications for the two questions left open by Haymond: whether the Sixth Amendment applies in the context of revocation, and if so, how it applies. First, because revocation functions as an imposition of punishment, just as sentencing does, it plainly implicates the Sixth Amendment, no matter the kind of proceeding in which it takes place. Second, because revocation of supervised release retroactively aggravates the punishment to which a person is exposed for a criminal offense, it violates that person’s jury right under Apprendi regardless of the severity of the resulting penalty. Hence, the retroactive theory of revocation: revocation of supervised release imposes unconstitutional punishment under Apprendi by retroactively increasing the range of penalties to which a person is exposed.

The retroactive theory has far-reaching consequences for those entangled in the federal criminal legal system. In June 2021, over 110,000 individuals were serving terms of supervised release, making supervised release by far the dominant form of criminal supervision imposed by federal courts.46 This is unsurprising, as federal courts impose a period of supervised release to follow incarceration in over ninety-nine percent of eligible cases.47 About one-third of those on supervised release will be reimprisoned based on a revocation,48 which means that every year, tens of thousands of individuals are sent to prison based on a finding made only by a judge on a preponderance of the evidence. More broadly, revocations of criminal supervision are so frequent and widespread that they now comprise almost half of all admissions into the American prison system.49 And although the primary focus of this Note is on the federal system, its proposed understanding of revocation may have implications for similarly determinate systems of state supervision.50

The retroactive theory and its revival of Apprendi’s substantive criminal law principles also have significance beyond the setting of revocation. Until Haymond, the Court—as well as most scholars51—never contemplated the possibility that Apprendi could be relevant outside of the criminal sentencing context. Indeed, Apprendi has been treated by courts, scholars, and textbooks as a “sentencing” decision.52 Because of this, there has been close to no discussion of how Apprendi’s functionalist understanding of crime and punishment might be helpful in challenging other excesses of the criminal legal system. This Note starts this conversation in the literature by denaturalizing the Apprendi doctrine from its natural habitat of criminal sentencing and demonstrating how it can be applied to other contexts. I suggest that Apprendi may have relevance for other forms of “post-judgment” penalties like extensions of supervision terms, criminal fees, and collateral consequences.53 Like revocation, such penalties aggravate a person’s punishment based on findings made long after initial sentencing has been completed. Under the retroactive theory, they may similarly be understood as circumventing the Sixth Amendment’s protections. The broader ambition of this Note is therefore to use revocation as a valuable test case that can guide scholars, litigants, and judges toward a more creative understanding of the constitutional right to a jury trial.

Part I reviews the development of the Apprendi doctrine through some of its most important cases. It describes the complex mechanics underlying Apprendi’s rule, that any fact that increases the range of penalties to which a person is exposed must be found by a jury and proved beyond a reasonable doubt. I then highlight Apprendi’s focus on the substantive criminal law and its exploration of the historical linkage between crime and punishment to arrive at a principle underlying the decision that is divorced from the particular setting of sentencing. This Part also previews the significance of Apprendi’s substantive criminal law approach and how it differs from more traditional means of Sixth Amendment interpretation.

Part II introduces the institution of federal supervised release and the potential constitutional problems raised by the system. I then discuss the Haymond decision and the reasoning adopted by the Justices who authored the three opinions in the case. Each opinion sounds in a different modality of constitutional analysis and a corresponding theory of revocation. What is common to all three opinions, however, is that they do not take to heart the teachings of the Apprendi doctrine in evaluating revocation’s constitutionality. I analyze the opinions in turn, both to shed light on the limitations of the approach endorsed by each and to provide the necessary historical and doctrinal context for my own.

In Part III, I introduce the retroactive theory of revocation, which focuses not on textual interpretation, but on the meaning of “crime” and “punishment” advanced by Apprendi and its progeny. I first demonstrate that revocation functions as an imposition of criminal punishment and thus falls within the ambit of the Sixth Amendment. Then, I explain why the factual basis for all revocations of supervised release constitutes a criminal “element” under Apprendi by harmonizing the formalist principles of the Apprendi rule with the peculiar reality that revocation punishes conduct that takes place long after initial sentencing. The retroactive theory ultimately finds that all revocations of supervised release violate Apprendi and the jury right, regardless of the length of the resulting sentence. Finally, the Part contemplates how the retroactive theory might apply to other forms of post-judgment penalties imposed by the state.

Part IV concludes the Note by envisioning a supervised-release system without revocation, and why such a system would be preferable to the status quo. While many have expressed concerns over the potentially “revolutionary” effects of applying the Sixth Amendment to revocation, I argue that such a revolution is welcome and necessary to protect the rights of those who have served their time, and to restore the original conception of federal supervised release as a tool of rehabilitation, not further punishment.