Thursday, December 03, 2020

Fifth Amendment Self-Incrimination Protections Still Don't Apply in Revocation Hearings (But Should They?)

US v. KaKa was on supervised release and tested positive for using drugs. His probation officer went to his home and they sat, around the kitchen table, while Ka explained that he had needed money after being released from the local jail and had sold some drugs for a friend. The probation officer prepared a statement, which Ka signed, then used Ka's admissions as a basis to seek revocation of his term of supervised release. Ka moved to have his statements suppressed, but the district court denied the motion, revoked his supervised release, and sentenced Ka to 30 months in prison (plus more supervised release).

A divided Fourth Circuit affirmed Ka's revocation. While Ka argued that his failure to raise his Fifth Amendment privilege should be excused because another condition of his supervised release required him to answer honestly any questions from his probation officer, the court held that it need not reach the issue. That is because in US v. Riley last year, the court had already held that Fifth Amendment self-incrimination protections did not apply in the supervised release context. The Supreme Court's recent decision in Haymond did not change that, as it dealt with particular revocations under 3583(k) involving child pornography, not the general revocation provisions of 3583(e). Therefore, Riley was still good (and binding) law.

Judge Gregory dissented. He argued that Ka's position was not that Haymond overruled Riley directly, but that it knocked out several of the underpinnings upon which Riley rested. In particular, Riley was one of a long line of cases that applied law from the probation and parole contexts to supervised release, basically treating them as equivalent. Haymond rejected that and suggested that supervised release (like death) is different. Therefore, Riley should be revisited and, ultimately, rejected.

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