Johnson v. United States

• Decision Date: 15 May 2000
• Docket Number: No. 99-5153.,99-5153.
• Citation: 529 U.S. 694
• Parties: JOHNSON v. UNITED STATES.
• Court: U.S. Supreme Court

529 U.S. 694

JOHNSON v. UNITED STATES.

No. 99-5153.

United States Supreme Court.

Argued February 22, 2000.

Decided May 15, 2000.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT.

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Souter, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O'Connor, Ginsburg, and Breyer, JJ., joined, and in which Kennedy, J., joined in part.Kennedy, J., filed an opinion concurring in part, post, p. 713.Thomas, J., filed an opinion concurring in the judgment, post, p. 715.Scalia, J., filed a dissenting opinion, post, p. 715.

Rita C. LaLumia argued the cause for petitioner. With her on the briefs were Leah J. Prewitt, David F. Ness, Jeffrey T. Green, and Joseph S. Miller.

Paul R. Q. Wolfson argued the cause for the United States. With him on the brief were Solicitor General Waxman, Assistant Attorney General Robinson, Deputy Solicitor General Dreeben, and Richard A. Friedman.^*

Justice Souter, delivered the opinion of the Court.

The issue in this case grows out of an Ex Post Facto Clause challenge to the retroactive application of 18 U. S. C. § 3583(h), which authorizes a district court to impose an additional term of supervised release following the reimprisonment of those who violate the conditions of an initial term. The United States argues that district courts had the power to do so under the prior law, and that this cures any ex post facto problems. We agree with the Government as to the interpretation of prior law, and we find that consideration of the Ex Post Facto Clause is unnecessary.

I

In the Sentencing Reform Act of 1984, § 212(a)(2), 98 Stat. 1999, Congress eliminated most forms of parole in favor of supervised release, a form of postconfinement monitoring overseen by the sentencing court, rather than the Parole Commission. See Gozlon-Peretz v. United States, 498 U. S. 395, 400-401 (1991). The sentencing court was authorized to impose a term of supervised release to follow imprisonment, with the maximum length of the term varying according to the severity of the initial offense. See 18 U. S. C. §§ 3583(a), (b). While on supervised release, the offender was required to abide by certain conditions, some specified by statute and some imposable at the court's discretion. See § 3583(d). Upon violation of a condition, 18 U. S. C. § 3583(e)(3) (1988 ed., Supp. V) authorized the court to "revoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release without credit for time previously served on post-release supervision . . . ."¹ Such was done here.

In October 1993, petitioner Cornell Johnson violated 18 U. S. C. § 1029(b)(2), a Class D felony. In March 1994, the United States District Court for the Eastern District of Tennessee sentenced him to 25 months' imprisonment, to be followed by three years of supervised release, the maximum term available under § 3583(b) for a Class D felony. Johnson was released from prison on August 14, 1995, having received good-conduct credits, and began serving his 3-year term of supervised release. Some seven months into that term, he was arrested in Virginia and later convicted of four state forgery-related offenses. He was thus found to have violated one of the conditions of supervised release made mandatory by § 3583(d), that he not commit another crime during his term of supervised release, and one imposed by the District Court, that he not leave the judicial district without permission.

The District Court revoked Johnson's supervised release, imposed a prison term of 18 months, and ordered Johnson placed on supervised release for 12 months following imprisonment. App. 40-41. For this last order, the District Court did not identify the source of its authority, though under Circuit law it might have relied on § 3583(h), a subsection added to the statute in 1994, see Violent Crime Control and Law Enforcement Act of 1994, § 110505(2)(B), 108 Stat. 2017. Subsection (h) explicitly gave district courts the power to impose another term of supervised release following imprisonment, a power not readily apparent from the text of § 3583(e)(3) (set out infra, at 704).

Johnson appealed his sentence, arguing that § 3583(e)(3) gave district courts no such power and that applying § 3583(h) to him violated the Ex Post Facto Clause of the Constitution, Art. I, § 9. The Sixth Circuit, joining the majority of the Federal Courts of Appeals, had earlier taken Johnson's position as far as the interpretation of § 3583(e)(3) was concerned, holding that it did not authorize a district court to impose a new term of supervised release following revocation and reimprisonment. See United States v. Truss, 4 F. 3d 437 (CA6 1993).² It nonetheless affirmed the District Court, judgt. order reported at 181 F. 3d 105 (1999), reasoning that the application of § 3583(h) was not retroactive at all, since revocation of supervised release was punishment for Johnson's violation of the conditions of supervised release, which occurred after the 1994 amendments. With no retroactivity, there could be no Ex Post Facto Clause violation. See App. 49 (citing United States v. Abbington, 144 F. 3d 1003, 1005 (CA6), cert. denied, 525 U. S. 933 (1998)). Other Circuits had held to the contrary, that revocation and reimprisonment were punishment for the original offense. From that perspective, application of § 3583(h) was retroactive and at odds with the Ex Post Facto Clause.³ We granted certiorari to resolve the conflicts, 528 U. S. 950 (1999), and now affirm.

II

The heart of the Ex Post Facto Clause, U. S. Const., Art. I, § 9, bars application of a law "that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed . . . ." Calder v. Bull, 3 Dall. 386, 390 (1798) (emphasis deleted). To prevail on this sort of ex post facto claim, Johnson must show both that the law he challenges operates retroactively (that it applies to conduct completed before its enactment) and that it raises the penalty from whatever the law provided when he acted. See California Dept. of Corrections v. Morales, 514 U. S. 499, 506-507, n. 3 (1995).

A

The Sixth Circuit, as mentioned earlier, disposed of the ex post facto challenge by applying its earlier cases holding the application of § 3583(h) not retroactive at all: revocation of supervised release "imposes punishment for defendants' new offenses for violating the conditions of their supervised release." United States v. Page, 131 F. 3d 1173, 1176 (1997). On this theory, that is, if the violation of the conditions of supervised release occurred after the enactment of § 3583(h), as Johnson's did, the new law could be given effect without applying it to events before its enactment.

While this understanding of revocation of supervised release has some intuitive appeal, the Government disavows it, and wisely so in view of the serious constitutional questions that would be raised by construing revocation and reimprisonment as punishment for the violation of the conditions of supervised release. Although such violations often lead to reimprisonment, the violative conduct need not be criminal and need only be found by a judge under a preponderance of the evidence standard, not by a jury beyond a reasonable doubt. See 18 U. S. C. § 3583(e)(3) (1988 ed., Supp. V). Where the acts of violation are criminal in their own right, they may be the basis for separate prosecution, which would raise an issue of double jeopardy if the revocation of supervised release were also punishment for the same offense. Treating postrevocation sanctions as part of the penalty for the initial offense, however (as most courts have done), avoids these difficulties. See, e. g., United States v. Wyatt, 102 F. 3d 241, 244-245 (CA7 1996) (rejecting double jeopardy challenge on ground that sanctions for violating the conditions of supervised release are part of the original sentence); United States v. Beals, 87 F. 3d 854, 859-860 (CA7 1996) (noting that punishment for noncriminal violations must be justified by reference to original crimes), overruled on other grounds, United States v. Withers, 128 F. 3d 1167 (1997); United States v. Meeks, 25 F. 3d 1117, 1123 (CA2 1994) (noting absence of constitutional procedural protections in revocation proceedings). Cf. Gagnon v. Scarpelli, 411 U. S. 778, 782 (1973) ("Probation revocation . . . is not a stage of a criminal prosecution"). For that matter, such treatment is all but entailed by our summary affirmance of Greenfield v. Scafati, 277 F. Supp. 644 (Mass. 1967) (three-judge court), summarily aff'd, 390 U. S. 713 (1968), in which a three-judge panel forbade on ex post facto grounds the application of a Massachusetts statute imposing sanctions for violation of parole to a prisoner originally sentenced before its enactment. We therefore attribute postrevocation penalties to the original conviction.

B

Since postrevocation penalties relate to the original offense, to sentence Johnson to a further term of supervised release under § 3583(h) would be to apply this section retroactively (and to raise the remaining ex post facto question, whether that application makes him worse off). But before any such application (and constitutional test), there is a question that neither party addresses. The Ex Post Facto Clause raises to the constitutional level one of the most basic presumptions of our law: legislation, especially of the criminal sort, is not to be applied retroactively. See, e. g., Lynce v. Mathis, 519 U. S. 433, 439 (1997); Landgraf v. USI Film Products, 511 U. S. 244, 265 (1994). Quite independent of the question whether the Ex Post Facto Clause bars retroactive application of § 3583(h), then, there is the question whether Congress intended such application. Absent a clear statement of that intent, we do not give retroactive effect to statutes burdening private interests. See id., at 270.

The...