Does the Prior Conviction Exception Apply to a Criminal Defendant’s Supervised Release Status?

By the end of 2007, 5.1 million people were serving probation, parole, or supervised release in the United States. This number represents one in every forty-five adults and continues to increase every year. Moreover, many individuals commit new crimes while they are on some form of supervised release. A federal study in 1991 demonstrated that 45 percent of state prison inmates were under conditions of parole or probation at the time they committed their offense. Upon finding the fact that defendants committed crimes while on supervised release for an earlier crime, judges have routinely imposed enhanced sentences.

The Supreme Court’s decision in Apprendi v New Jersey disturbed this practice of judge-imposed enhancements governing recidivists. The Apprendi Court held that all facts other than a prior conviction must be found by a jury beyond a reasonable doubt in order to enhance a criminal defendant’s sentence beyond the statutory maximum. After Apprendi, the question arose whether, under the Sixth Amendment, a jury must find the fact of a criminal defendant’s supervised release status when he commits the new crime. A majority of state and federal courts have ruled that a person’s supervised release status falls under the “prior conviction exception” carved out in Apprendi’s bright-line rule, and thus a judge may find such facts. The Ninth Circuit and a minority of state courts have held otherwise.

This Comment concludes that a judge cannot find the fact that the defendant committed the crime while on supervised release. Part I traces the development and application of the prior conviction exception. Part II describes the current split over whether the exception covers the fact of a person’s supervised release status at the time of the crime. Part III proposes that a judge may only find facts previously found by a jury or admitted to in a guilty plea in a prior proceeding resulting in conviction. A defendant’s supervised release is not such a fact. This approach is more consistent with Sixth Amendment case law than the current positions of courts on both sides of the split. Both the majority and minority views fail because they allow judges to find facts that were not previously found by a jury.