By Joe Gergits
Assistant General Counsel, Administrative Office of the United States Courts

A Guide to Statutory Retroactivity in the Revocation Context

This article discusses principles that determine which version of a punitive statute applies to a specific offender in the context of probation or supervised release revocation proceedings. Those precepts are constitutional (the Ex Post Facto Clause), jurisprudential (the presumption against retroactivityi), and statutory (the federal savings statute). This article demonstrates that applying these principles enables officers to select the correct version of a revocation provision and accurately determine whether a substantive statute may be invoked as a potential basis for revoking a particular offender’s term of supervision.

I. The Ex Post Facto Clause and the Presumption Against Retroactivity

The Ex Post Facto Clause generally prohibits legislators from altering or creating criminal consequences for an action taken prior to legislative action.ii Current understanding of the Ex Post Facto Clause is based on the Supreme Court’s initial interpretation of the provision in Calder v. Bulliii. In Calder, the Court identified four types of ex post facto laws: 1) a law that “makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action”; 2) a law that “aggravates a crime, or makes it greater than it was, when committed”; 3) a law that “changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed”; and 4) a law that “alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offense, in order to convict the offender.”iv

Revocation sanctions for violating post-conviction conditions of supervision fall within the third type of ex post facto laws described in Calder. To prevail on this type of ex post facto claim, an offender has to satisfy a two-part test. First, the offender must establish that the challenged law operates retroactively, that is, it applies to conduct completed before its enactment. Second, the offender must establish that the challenged law increases the penalty from whatever the law provided when the offense of conviction was committed.v Counsel and courts often apply the two-part ex post facto test to a new revocation provision without first examining the legislation for evidence that Congress intended the provision to be applied retroactively. Forgoing this step can lead to the inaccurate conclusion that a new revocation provision applies to all future revocation proceedings if it appears no more punitive than the predecessor statute.

The revocation sentence under review by the Supreme Court in Johnson v. United Statesvi illustrates this problem. In Johnson, the Supreme Court considered whether legislation adding a new revocation sanction to 18 U.S.C. § 3583 could be applied to an offender whose offense of conviction had preceded enactment of the provision but whose violation of a condition of supervised release occurred after enactment. The new revocation sanction was created by the Violent Crime Control and Law Enforcement Act of 1994 (“VCCA”),vii was enacted on September 13, 1994, and codified as a new subsection (h) of 18 U.S.C. § 3583. Section 3583(h) specifically authorized courts to impose a term of supervised release to follow a revocation sentence of imprisonment. Congress had not specified an effective date for the new provision, which meant that the law took effect on the date of its enactment and could only be applied to offenders who committed their offenses on or after the date the President signed the bill into law.viii Petitioner Cornell Johnson, who committed his offense of conviction in October 1993, had violated one of his conditions of supervised release several months after the VCCA’s enactment.

Before the Supreme Court’s decision in Johnson, circuit courts had disagreed whether § 3583(h) could be applied to offenders like Johnson who committed their offenses prior to September 13, 1994. Resolution of this issue depended upon whether revocation of supervised release was characterized as punishment for a post-enactment violation or as conditional punishment imposed at sentencing. The Sixth Circuit precedent on review before the Supreme Court characterized revocation as punishment for a new “offense.” Under such precedent, applying § 3583(h) to a violation that occurred post-enactment would not be a “retroactive” application of the new law, but punishment for an offense that had occurred after the law was enacted.ix Other circuits disagreed with the Sixth Circuit and held that applying § 3583(h) retroactively would disadvantage offenders in violation of the Ex Post Facto Clause by increasing the revocation penalty that was an inherent part of a pre-enactment sentence.x

In Johnson, the Court rejected the Sixth Circuit’s analysis, and held that the prudential rule proscribing retroactive application of new laws precluded the retroactive application of §3583(h).xi In addition, the Court held that reimposition of supervised release was implicitly authorized under § 3583(e)(3) for offenses committed before enactment of § 3583(h).xii The Court found that characterizing supervised release violations as new offenses, as the Sixth Circuit did, avoided the retroactivity element of an ex post facto claim, but invited claims that the Double Jeopardy Clause would be violated if a crime was punished by revocation and a separate criminal
prosecution.xiii The Court held that revocation sanctions were part of the sentence for the original offense, thereby averting potential conflict with the Double Jeopardy Clause while limiting revocation sanctions to those available at sentencing.

Once the Johnson Court determined that imposing a revocation sanction created by post-offense legislation would result in retroactive application, it only had to determine that the new law increased the revocation penalty to find an ex post facto violation. Instead of proceeding to the “increased punishment” prong of the ex post facto test, however, the Court relied upon the judicial presumption that, unless otherwise stated, Congress intends that statutes operate prospectively.xiv The Court observed that this presumption is particularly strong when criminal laws are under consideration and the Ex Post Facto Clause is implicated.xv

The Johnson Court, while relying upon the presumption against retroactivity, did not describe its contours and limitations. Supreme Court cases decided before Johnson, most notably Landgraf v. USI Film Products,xvi made it clear that “(e)lementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly.”xvii To implement these basic considerations of fairness, the presumption against retroactivity applies to “‘every statute, which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past.’”xviii In Lynce v. Mathis,xix the Court stated that the specific prohibition against ex post facto laws was “only one aspect of the broader constitutional protection against arbitrary changes in the law.”xx The Court in Johnson held that this presumption against retroactive effect can only be overcome by a “clear statement” from Congress that it intended the law to have retroactive effect.xxi

The presumption applies if “the new provision attaches new legal consequences to events completed before its enactment.”xxii It generally does not apply, however, if the legislation is primarily prospective in nature (such as laws authorizing or negating the availability of injunctive relief),xxiii if it creates or ousts jurisdiction,xxiv or if it alters procedural rules.xxv Nonetheless, the presumption may apply even to these exceptions if giving retroactive effect would affect substantive rights or the “primary” conduct of litigation.xxvi Given that even the exceptions to the presumption against retroactivity are subject to exceptions, the Court engaged in understatement when it observed that “deciding when a statute operates ‘retroactively’ is not always a simple or mechanical task.”xxvii Fortunately, legislation amending revocation provisions will generally affect substantive rights and therefore have only prospective effect, or it will alter procedure and generally will apply to all offenders.

As clarified by Johnson, the general rule in the revocation context is this: absent specific direction from Congress regarding a law’s effective date, a new statute that creates or increases a penalty is assumed to only apply prospectively: that is, to offenders whose offenses were committed on or after the date of enactment.xxviii Because revocation sanctions are deemed to be a component of the original sentence, and the sentence must be one that applied when the offense was committed, revocation sanctions also are limited to those that applied when the offender committed the offense. If a statute alters existing procedures but will neither affect an offender’s sentencing exposure nor influence the court’s decision about the propriety of a revocation sanction, it is not subject to the presumption against retroactivity. If Congress specifies that a revocation sanction is to apply retroactively, the presumption against retroactivity does not apply. Instead, a court considering the propriety of applying the statute retroactively would have to determine if such application violates the Ex Post Facto Clause by increasing the revocation penalty from whatever the law provided when the offense of conviction was committed.

II. The Federal Savings Statute: 1 U.S.C. § 109

While the Ex Post Facto Clause prohibits the retroactive application of a new punitive statute that disadvantages a wrongdoer, no constitutional provision limits the retroactive enforcement of legislation that ameliorates a pre-existing provision. Does this mean that a defendant may benefit from legislation that decreases or repeals a sentencing provision that he was subject to when he committed his offense?xxix Under common law, the answer would have depended on whether the new legislation replaced the entire statute setting forth the offense and its penalty or only lowered the prior penalty. The repeal of an entire criminal statute or re-enactment by amendment when the new statute increased a penalty or broadened the scope of prohibited conduct precluded a prosecutor from charging or convicting a defendant under either statute. Conviction and sentencing under the former statute was precluded by the doctrine of abatement.xxx Conviction and sentencing under the newly-enacted statute would be unconstitutional because it would be an ex post facto law if applied to a defendant who had violated the former law.xxxi If a statutory amendment simply reduced punishment, however, courts generally held that an offender who violated the version of the statute with the more onerous penalty could receive the more lenient punishment set forth in the amending legislation.xxxii The common law abatement rule was designed to implement presumed legislative intent when Congress had failed to specify whether it intended to repeal or preserve a prior criminal law with regard to defendants who had violated it before its amendment.

Whether a new criminal sanction is more lenient than its predecessor, and therefore may be applied retroactively, may be difficult to determine, however. For example, which hypothetical statutory maximum sentencing provision is more lenient – one calling for no more than 10 years imprisonment with no supervised release to follow or one providing for a maximum of 10 years combined imprisonment and supervised release? What if the potential maximum revocation sentence for the latter provision was an additional five years imprisonment with an additional term of supervised release? To avoid such questionable weighing of penalties and foreclose fortuitous escapes from prosecution due to technical abatements of amended or repealed statutes, Congress and most state legislatures abolished the common law presumption by enacting general savings statutes specifying that amendments to a civil or criminal statute do not extinguish penalties, rights, or liabilities accrued or incurred under the original law.xxxiii The federal savings statute (“savings statute”) states that,

The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.

1 U.S.C. § 109. While the savings statute provides that it applies to the “repeal of any statute,” courts have uniformly interpreted this language to mean that the statute applies to statutory amendments as well as repeals.xxxiv

The plain language of the federal savings statute requires that when an individual is subject to a harsh penalty or liability under any statute that is either effectively repealed by an ameliorative amendment or eliminated entirely, courts must apply the harsher repealed or amended version to offenses that occurred prior to repeal or amendment. The only exception to this rule is if Congress directs that the more lenient provision applies to pre-enactment offenses. The Supreme Court in Johnson held (as did most circuit courts prior to Johnson) that revocation sanctions are those that were in effect when an offender committed his original offense. The savings statute and presumption against retroactivity applied in Johnson require that courts rely upon the supervised release sanctions that were part of the punishment when the original offense was committed, regardless of subsequent ameliorative amendment to revocation provisions.xxxv

III. Applying the Ex Post Facto Clause, the Presumption Against Retroactivity, and the Savings Statute in the Revocation Context

A. 1994 Amendments to Mandatory Revocation Provisions

Prior to the VCCA’s September 13, 1994, enactment, 18 U.S.C. §§ 3565(a) and 3583(g) required mandatory revocation of a term of probation or supervised release when an offender violated a condition of supervision by possessing a controlled substance.xxxvi Several circuit courts interpreted §§ 3565(a) and 3583(g) to require a finding of possession and mandatory revocation after a positive urine test.xxxvii VCCA sections 110505 and 110506 removed the mandatory minimum term of imprisonment (one-third the sentence of probation or supervised release after revocation), and simply required the court to impose a sentence that included a “term of imprisonment.”xxxviii

In addition, VCCA section 20414 amended § 3563(a) to require the court, acting in accordance with the Sentencing Guidelines, to consider exempting an offender who fails a drug test from the § 3565(b) mandatory revocation provisions:

The court shall consider whether the availability of appropriate substance abuse treatment programs, or an individual's current or past participation in such programs, warrants an exception in accordance with United States Sentencing Commission guidelines from the rule of section 3565(b), when considering any action against a defendant who fails a drug test administered in accordance with paragraph (4).xxxix

A similar amendment was made to section 3583(d) with respect to the 3583(g) mandatory revocation provision for supervised release.xl

Taken together, the new VCCA provisions regarding drug testing and revocation required a court to revoke and impose a sentence of imprisonment when an offender was found to have illegally possessed a controlled substance. A positive drug test, however, required a court to consider options other than imprisonment (unless possession and not merely a positive drug test was established). Although the amended versions of §§ 3565(b) and 3583(g) still required a district court to revoke probation or supervised release and impose a term of imprisonment once possession was proven, they gave the court discretion as to length of the imprisonment for probation and supervised release revocations,xli and they authorized a court to forego imprisonment for a positive drug test if appropriate drug treatment services are available.xlii These statutory amendments were incorporated into the relevant section of the United States Sentencing Guidelines (“guidelines”) in 1995.xliii

Following enactment of the VCCA amendments, the Office of General Counsel (“OGC”) advised that courts could apply the more lenient post-VCCA versions of §§ 3565(b) and 3583(g) to offenders who had been sentenced before the VCCA’s September 13, 1994, effective date. OGC acknowledged that this advice was in tension with the plain language in the savings statute that “[t]he repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.”xliv OGC advocated that courts view the savings statute as applying only to the sentence for an offense, but not to the §§ 3563, 3565, and 3583 provisions governing the revocation of supervised release.xlv

OGC’s opinion that the savings statute applied to the sentence imposed for the offense but not to revocation sanctions may have been a tenable position prior to the Supreme Court’s holding in Johnson. However, after Johnson established that the presumption against retroactivity and the Ex Post Facto Clause required that courts apply the revocation provisions that were in effect when an offense occurred, the argument that the savings statute did not apply to revocation provisions became insupportable. The plain language of the savings statute and the Court’s holding in Johnson that revocation penalties are those that were in effect when the offense was committed resolved any doubts concerning which version of §§ 3563, 3565, and 3583 applies upon revocation. When an individual incurs a penalty or liability under any statute that subsequently is repealed or amended by ameliorative legislation, courts must continue to impose the harsher version of the statute unless Congress had expressly stated that the recent lenient legislation should be applied retroactively. Because the VCCA did not provide for retroactive application of its ameliorative provisions, the better view is that the savings statute limits their application to offenders who committed their offenses after its effective date.

The Second Circuit is the only circuit court to directly address the propriety of retroactively applying one of the VCCA amendments based upon the Supreme Court’s holding in Johnson and the savings statute. In its 2003 decision in United States v. Smith,xlvi the Second Circuit held that the Supreme Court’s holding in Johnson and the plain language of the savings statute precluded retroactive application of the VCCA’s ameliorative amendment to § 3583(g). The defendant in Smith had contended that the district court erred when revoking his term of supervised release by relying upon the pre-VCCA version of § 3583(g) that applied when he committed his offense rather than the more lenient post-VCCA version of § 3583(g) in effect when his supervision was revoked. The Second Circuit held that the fundamental “message of Johnson” was that “supervised release sanctions are part of the punishment for the original offense, and that the sanctions of the original offense remain applicable, despite subsequent amendment.”xlvii In addition, the Smith panel held that the savings statute preserved the original penalties in effect when the offender had committed his offense, including those relating to supervised release. Finally, the Second Circuit held that the version of the sentencing guidelines in effect at the time of Smith’s revocation, which indirectly supported Smith’s argument, conflicted with the pre-VCCA version of § 3583(g). Because sentencing guidelines are the equivalent of legislative rules adopted by federal agencies, and statutes always trump conflicting rules, the pre-VCCA version of § 3583(g) prevailed over the conflicting guidelines.xlviii

B. 2002 Amendments to Mandatory Revocation Provisions and the Enactment of Juvenile Supervised Release

In November 2002, section 2103 of the 21st Century Department of Justice Appropriations Authorization Act (“the DOJ Authorization Act”)xlix once again amended §§ 3565(b) and 3583(g) to establish a fourth basis for mandatory revocation of probation or supervised release. The DOJ Authorization Act required revocation if an offender “as a part of drug testing, tests positive for illegal controlled substances more than 3 times over the course of 1 year.”l OGC analyzed the DOJ Authorization Act in a January 15, 2003, memorandum that recommended that officers count any positive drug test after November 2, 2002 (the effective date of the Act), towards the four or more positive tests mandating revocation regardless of whether the offender had committed his offense before or after the DOJ Authorization Act’s effective date. This advice was not unqualified, however. The memorandum cautioned that “Chiefs may wish to consult with their courts regarding the reporting of the first three positive drug tests.”li

The rationale provided for this advice was that applying §§ 3565(b)(4) and 3583(g)(4) retroactively would not disadvantage offenders. Rather, application of these provisions arguably would ameliorate the harsher pre-existing mandatory revocation provisions in 18 U.S.C.

§§ 3565(b)(1) and 3583(g)(1) for “drug possession.”lii The pre-existing “drug possession” revocation provisions of §§ 3565(b)(1) and 3583(g)(1) were characterized as harsher than the DOJ Authorization Act’s “more than three positive drug tests” provisions of 18 U.S.C.§§ 3565(b)(4) and 3583(g)(4), because the latter provisions allowed a court to consider drug treatment in lieu of revocation even after four or more failed drug tests. Likewise, the pre-DOJ Authorization Act versions of §§ 3565(b) and 3584(d) placed offenders at risk of revocation for even one positive drug test. The memorandum opined that, because there was no similar treatment alternative to revocation for offenders who “possess” drugs, a court would not run afoul of the Ex Post Facto Clause if it applied the amendments to offenders who committed their offenses before November 2, 2002 (“pre-DOJ Authorization Act offenders”).

While the January 15, 2003, OGC memorandum may have correctly determined that retroactive application would not violate the Ex Post Facto Clause, it conflicted with the Supreme Court’s mandate that “‘congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result.’”liii Because nothing in the DOJ Authorization Act overcomes this presumption of prospective effect, OGC revised the memorandum in November 2005liv to counsel that §§ 3565(b)(4) and 3583(g)(4) should not be applied retroactively to pre-DOJ Authorization Act offenders. Rather, those provisions should only be applied to offenders who committed their crimes after November 2, 2002.

OGC expressed a similar view in 2005 regarding the non-retroactivity of Section 12301 of the DOJ Authorization Act, which amended 18 U.S.C. § 5037 to authorize a term of supervised release for juveniles.lv OGC’s 2005 revised advice was consistent with the Eighth Circuit’s 2004 retroactivity analysis in United States v. J.W.T.lvi In J.W.T., the Eighth Circuit reviewed a district judge’s determination that the juvenile supervised release provision created by the DOJ Authorization Act could be applied retroactively even if the underlying act of delinquency occurred before November 2, 2002. As an initial matter, the Eighth Circuit considered the threshold requirement of clear congressional intent that courts apply the statute retrospectively. The Eighth Circuit held that, because there was no evidence that Congress intended the law to apply retroactively, the presumption against retroactivity precluded courts from applying the amended statute to a juvenile whose delinquent act had occurred before enactment. The court’s reasoning was straightforward: there is a presumption that legislation should not be applied retroactively absent an express indication to the contrary by Congress; such a statement was absent regarding juvenile supervised release; therefore, the November 2002 amendments to § 5037 could only be applied prospectively. The Eighth Circuit invoked the Supreme Court’s holding in Johnson that a term of supervised release must be considered as part of the penalty for the original criminal act (or, in this context, the act of juvenile delinquency).lvii

As in Johnson and J.W.T., nothing in the DOJ Authorization Act amendments to §§ 3565(b) and 3583(g) countered the presumption against retroactive application of new legislation to those who committed their offenses prior to enactment. Even if the amendments to §§ 3565(b), 3583(g), and 5037 could be deemed ameliorative, the savings statute, 1 U.S.C.§ 109, would preclude offenders from benefitting from more lenient laws passed after they had committed their offenses.lviii

C. Violations of 18 U.S.C. § 2250 as a Basis for Revocation

Section 141 of the “Sex Offender Registration and Notification Act” (“SORNA”), which is Title I of the “Adam Walsh Child Protection and Safety Act of 2006” (“Adam Walsh Act”),lix created 18 U.S.C. § 2250,lx a new federal crime of failing to register in accordance with SORNA. Violations of § 2250 are increasingly relied upon as a basis for revoking supervised release. Because SORNA did not specify effective dates for most of its sex offender registration requirements or the new federal crime of failure to register, § 2250 took effect on July 27, 2006, the date of its enactment. Nonetheless, district courts have disagreed about whether application of 18 U.S.C. § 2250 violates the Ex Post Facto Clause when one or more (but not all) elements of the offense occurred prior to its date of enactment. Officers must resolve the retroactivity issue whenever a basis for revocation is a § 2250 violation involving an offender who committed the sex offense that requires registration prior to July 27, 2006.

Determining whether application of § 2250 violates the Ex Post Facto Clause is complicated because the statute is violated only if an offender was required to register under SORNA by virtue of 1) a conviction under federal law (including the Uniform Code of Military Justice), the law of the District of Columbia, Indian tribal law, or the law of any territory or possession of the United States (collectively “a federal sex offense conviction”) and the offender knowingly failed to register or update a prior registration; or 2) a conviction under state law and the offender “travels” in interstate or foreign commerce or enters or leaves, or resides in, Indian country and knowingly failed to register or update a prior registration. 42 U.S.C. § 16913(d) authorized the Attorney General to specify the applicability of SORNA to sex offenders who had been convicted of a sex offense before July 27, 2006, and who were unable to comply lxiwith initial registration requirements. On February 28, 2007, the Attorney General issued an interim rule “specify[ing] that the requirements of [SORNA] apply to sex offenders convicted . . . before the enactment of [SORNA].”lxii

The interim rule prompted offenders with pre-enactment state sex offense convictions to raise ex post facto challenges to § 2250 if they had traveled in interstate commerce and/or failed to register or update a registration after the enactment of SORNA but before the February 28, 2007, interim rule that purported to clarify their registration obligations. Many district courts found ex post facto violations where an offender had been convicted of a sex offense prior to SORNA’s July 27, 2006, enactment but was charged with violating § 2250 by failing to register or update a registration prior to issuance of the February 28, 2007, interim rule that established the registration
obligation.lxiii Other district courts have dismissed indictments for ex post facto violations when the offender’s interstate travel occurred before SORNA’s July 27, 2006, enactment even though the alleged failure to register or update a registration occurred both before and after February 28,
2007.lxiv The latter category of cases found violations on the grounds that a § 2250 violation is not a “continuing violation,” like conspiracy. Instead, the crime is deemed to be complete as soon as the obligation to register ripened after interstate commerce from one jurisdiction to another.lxv

A significant number of district courts concluded that § 2250 was effective upon its July 26, 2007, enactment as to all those convicted of sex offenses after that date who failed to register as required by SORNA, but it did not apply to those with pre-SORNA convictions until the Attorney General eventually issued the interim rule on February 28, 2007. Until binding circuit court precedent clarifies the retroactivity issue, officers should invoke a violation of § 2250 as a basis for revocation of supervision with caution. To avoid ex post facto problems when petitioning to revoke based on an apparent § 2250 violation,lxvi officers may petition to revoke offenders who qualify as sex offenders under SORNA because of a post-July 26, 2007, federal sex offense conviction if the offender failed to register or update a registration after July 26, 2007. If the qualifying federal sex offense conviction was prior to July 26, 2007, a petition may be premised on a failure to register or update a registration after the Attorney General had issued the interim rule on February 28, 2007. Officers may petition to revoke offenders who qualify as sex offenders under SORNA because of a post-July 26, 2007, State sex offense conviction if the offender thereafter traveled in interstate commerce (as defined in § 2250(a)(2)(B)), and failed to register or update a registration. If a State sex offense conviction was prior to July 26, 2007, a petition will likely survive challenge if the requisite interstate travel and failure to register or update a registration occurred after the Attorney General issued the interim rule on February 28, 2007.

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References | Endnotes