Revocation at the Founding

Authors

Jacob Schuman, Temple University Beasley School of LawFollow

Abstract

The Supreme Court is divided over the constitutional law of community supervision. The justices disagree about the nature of a defendant’s liberty under supervision, the rights that apply when the government punishes violations, and the relationship between parole, probation, and supervised release. These divisions came to a head in 2019’s United States v. Haymond, where the justices split 4–1–4 on whether the right to a jury trial applies to revocation of supervised release. Their opinions focused on the original understanding of the jury right at the time the Constitution was ratified.

This Article aims to settle the debate over the law of revocation at the Founding. In the late-eighteenth-century United States, there was a close legal analogue to modern community supervision: the recognizance to keep the peace or for good behavior. Like probation, parole, and supervised release, the recognizance was a term of conditional liberty imposed as part of the sentence for a crime, providing surveillance and reporting on the defendant’s behavior, with violations punishable by imprisonment. Given these similarities, the best way to determine if the original understanding of the jury right would apply to revocation proceedings today is to ask whether the common law required a jury for punishing violations of a recognizance.

Fortunately, Founding Era legal authorities make the answer to that question clear: Yes, at the time the Constitution was ratified, punishing recognizance violations required a jury trial. This requirement disappeared during the nineteenth century only due to the development of probation and parole, which changed the structure of community supervision from an additional penalty into a delayed punishment. Because supervised release is structured as a penalty, not a delay, the original understanding of the jury right would apply to revocation of supervised release, even if not to revocation of probation or parole. The law of revocation at the Founding preserves lost constitutional rights that deserve modern recognition and renewal.

Recommended Citation

Jacob Schuman, Revocation at the Founding, 122 Mich. L. Rev. 1381 (2024).
Available at: https://repository.law.umich.edu/mlr/vol122/iss7/1