The Company of Scoundrels

Table of ContentsI. Introduction 401II. The Constitutionality of Current Law 402III. The Wisdom of Current Policy 405A. Solution 1 405B. Solution 2 406C. Solution 3 407One who would defend [certain constitutional rights] must share his foxhole with scoundrels of every sort, but to abandon the post because of the poor company is to sell freedom cheaply.1I. IntroductionMy initial reaction to Brett Shockley's Note, Protecting Due Process from the PROTECT Act: The Problems with Increasing Periods of Supervised Release for Sexual Offenders2 was to admire his courage. Not many people would undertake a discussion of possible injustice to child pornographers, who surely rank with terrorists and drug dealers as the most reviled and least sympathetic claimants for fair treatment. Shockley puts aside the moral condemnation these people deserve,3 and focuses on the morality of procedure-the rule of law if you will-divorced from the worthiness, or lack thereof, of particular defendants. As students of criminal procedure come to learn, our most precious rights are sometimes invoked and defended by our worst citizens.4 In the final tally, constitutional protections often flow from the intrinsic worth of proper procedure, aside from the worth of the people who ask for that procedure.The other display of courage that gained my admiration was the willingness of a second-year law student to tackle two complex constitutional doctrines,5 further complicated by seemingly inconsistent congressional enactments. When I grasped the full scope of Shockley's analysis, I mused as to why he had not tackled something easier like the abortion controversy or the full ramifications of death penalty law. If this "first edition" article by a young scholar is a predictor of the future, I can hardly wait for the sequel.II. The Constitutionality of Current LawShockley attempts to hook the government on the horns of a dilemma created by two constitutional doctrines: the double jeopardy provisions of the Fifth Amendment,6 and the Due Process Clause as expounded in Apprendi v. New Jersey? At its most fundamental level, the Double Jeopardy Clause prohibits multiple trials and multiple punishments for a single crime. When a convicted sex offender commits a second sexual offense, the simplest way to avoid double jeopardy problems is to say that the offender will be punished separately for two distinct crimes. Separate crimes and punishments could be the following: (1) the first offense warrants ten years imprisonment with the accompanying lifetime supervised release; and (2) the second offense warrants revocation ofthat supervised release and reincarceration for life.8This is a straightforward way to avoid double jeopardy problems, but in turn, this approach creates an Apprendi problem. If life imprisonment through revocation of supervised release is a separate and distinct punishment for a second crime, the defendant has been punished for that crime without according him a trial with full due process rights. In place of a full trial, the determination of whether or not the defendant committed a second sexual offense would be made in a revocation hearing without a jury and without holding the government to the proof beyond a reasonable doubt standard.Some courts have avoided the Apprendi problem by holding that life imprisonment through revocation is not a second punishment, but is part of the original sentence for the first offense - an offense that was litigated at a trial where the defendant was accorded die full panoply of his due process rights. …