Esteras v. United States Answers Half the Question Presented

This week marks the end of the U.S. Supreme Court’s October 2024 term. Among the many cases decided by the Court in the past few weeks have been a handful on sentencing and corrections law. This is a first in a series of essays about those cases. It is authored by Jacob Schuman, an Associate Professor at Temple University’s Beasley School of Law. Jacob teaches Constitutional Law, Criminal Law, Evidence, and the Law of the Police, and he authored an amicus brief in Esteras v. United States, decided last week by the Court, for a group of law professors. We are honored that Jacob has contributed this essay, and we welcome him to the Sentencing Matters Substack.

-Jonathan

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Last week, the Supreme Court decided Esteras v. United States, which asked whether district courts may consider retribution when revoking supervised release. In an opinion by Justice Barrett, the Court divided that question into two halves, and then proceeded to answer only the less important half. In so doing, it ensured that the issue would return to the justices again, perhaps before too long.

To describe the stakes in Esteras, I need to start by explaining two concepts: “supervised release” and “retribution.” “Supervised release” is a form of community supervision in the federal criminal justice system that is imposed by a judge at sentencing to follow the defendant’s term of imprisonment. Every term of supervised release includes a list of conditions governing the defendant’s behavior, with violations punishable by imprisonment. Approximately 110,000 people are currently serving terms of supervised release, and 17,000 have their supervision revoked each year, accounting for 25% of all federal prison sentences.

"Retribution" is a theory of sentencing that says that criminal defendants deserve to be punished because it is inherently just to punish morally wrongful behavior. It contrasts with utilitarianism, which says that criminals should be punished because doing so produces beneficial results, such as deterrence, incapacitation, and rehabilitation. In other words, retribution is a backward-looking theory that punishes based on moral wrongs, whereas utilitarianism is a forward-looking theory that punishes to promote good outcomes.

Esteras involved a debate over whether judges could revoke supervised release for retribution. That debate turned on the interpretation of two federal statutes. The first statute was 18 U.S.C. § 3553(a), which describes the theories of punishment a judge might consider when sentencing a criminal defendant:

Factors To Be Considered in Imposing a Sentence.—The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider …

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed—

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

As you can see, § 3553(a) lists four possible justifications for punishment that correspond to the four theories of sentencing outlined above. Retribution is described in § 3553(a)(2)(A), which refers to the “seriousness of the offense,” “respect for the law,” and “just punishment for the offense.” The three utilitarian theories are in § 3553(a)(2)(B)-(D), which describe deterrence, incapacitation, and rehabilitation.

The second provision is 18 U.S.C. § 3583(e)(3), which tells judges what factors to consider when revoking supervised release. This provision cross-references § 3553(a), and is very specific about the factors it includes:

Revocation — The court may, after considering the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), [and] (a)(2)(D), … revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release without credit for time previously served on post-release supervision.

Look carefully, and you will see that § 3583(e)(3) tells judges to consider all the theories of sentencing from § 3553(a) except for one. It lists § 3553(a)(2)(B), § 3553(a)(2)(C), and § 3553(a)(2)(D), but omits § 3553(a)(2)(A) – retribution. Esteras argued that this omission meant that judges were forbidden from considering retribution when revoking supervised release. The government claimed that judges were not required to consider retribution, but still were allowed to consider it if they wanted to.

Justice Barrett’s majority opinion ruled in favor of Esteras, yet in a manner that left the most important question in the case unresolved. She started by pointing out that whenever a judge decides whether to revoke a defendant’s supervised release, there are actually two potential moral wrongs at stake. The first wrong is the defendant’s “underlying crime of conviction,” which led to them being sentenced to supervised release in the first place. The second wrong is the defendant’s new “violation of supervised release,” which is why they ended up in revocation proceedings. Therefore, she said, the case actually presented two distinct questions: (1) can judges revoke supervised release as retribution for the defendant’s original offense, and (2) can they revoke supervised release as retribution for the defendant’s new violation?

Justice Barrett claimed that Esteras’s case only required the Court to answer the first question – whether judges can revoke supervised release as retribution for the defendant’s original crime. At Esteras’s revocation hearing, she noted, the judge had remarked that he was “no stranger” to criminal behavior and that his previous sentences had been “rather lenient.” This justification for revoking his supervised release violated § 3583(e)(3), she explained, because the “natural implication” of the provision’s omission of retribution as a factor was that judges could not consider it. By including all the theories of sentencing except for retribution, the statute showed that Congress did not intend for courts to consider it, an interpretive principle is known as the “expressio unius” canon.

However, in footnote 5, Justice Barrett emphasized that the Court was not deciding the second question presented – whether judges can revoke supervised release as retribution for the defendant’s new violation. She pointed out that the federal Sentencing Guidelines recommend that judges revoke supervised release to “sanction” the “violator” for their “breach of trust.” Even if the omission of § 3553(a)(2)(A) meant that judges could not revoke supervised release as retribution for the defendant’s original offense, she noted, they were still required to consider the Guidelines. While the government argued that the Guidelines could be read to permit judges to seek retribution for the defendant’s violation, she said that the Court took “no position on whether that was a permissible consideration.”

I believe that Justice Barrett correctly interpreted § 3583(e)(3) to exclude retribution for the defendant’s original offense (and in fact, I submitted an amicus brief in support of Esteras). Unfortunately, I also think she failed to answer the most important question in the case. In practice, judges revoking supervised release are far more likely to focus on the defendant’s new violation than a criminal conviction that may have occurred several years earlier. Although Esteras’s case presented the unusual circumstance of a judge seeking retribution for the defendant’s original offense, the alternative is probably much more common. Indeed, the lower court decisions Justice Barrett cited as evidence of a circuit split on this issue all either imposed retribution for a new violation or held that retribution could not be imposed on that basis. After Esteras, this split remains.

The Court’s divide-and-only-partially-conquer approach did not go unnoticed by the other justices. For example, Justices Sotomayor and Jackson both wrote concurring opinions making clear that they would have held that judges may never consider retribution when revoking supervised release, either for the original offense or the new violation. Justice Alito’s dissent charged that the majority “only half-heartedly” bought its own reasoning because it did not address the second question.

Because Esteras only answered half the question presented, it remains unsettled whether judges can revoke supervised release as retribution for the defendant’s new violation. Going forward, I recommend that criminal defense attorneys continue to argue that they may not. There are strong arguments for this position, which I have set forth at length elsewhere. The government’s reliance on the “breach of trust” concept from the Sentencing Guidelines is particularly weak, not only because that concept has been thoroughly discredited, but also because the United States Sentencing Commission recently promulgated amendments to the Guidelines that seem to deemphasize that language.

Given the size of the federal supervision system and the high rate of revocations, the question of whether judges can revoke supervised release as retribution for a defendant’s violation is sure to return to the Court, sooner or later. When it does, the Court’s decision will have major consequences not only for criminal defendants, but also for anyone who cares about the government’s justifications for punishment. Hopefully, at that point, we get a full answer.