Importantly, the Haymond plurality distinguished the defective federal supervised release statute at issue before it from probation and parole, which it noted “have usually been understood to comport with the Fifth and Sixth Amendments.” Haymond, 588 U.S. __, 139 S. Ct. at 2381 (plurality opinion). The plurality explained that probation and parole comply with Apprendi principles because, upon finding a violation, “a judge generally could sentence the defendant to serve only the remaining prison term authorized by statute for his or her original crime of conviction.” Id. at 2382. “Thus, a judge could not imprison a defendant for any longer than the jury’s factual findings allowed-a result entirely harmonious with the Fifth and Sixth Amendments.” Ibid. New Jersey’s special probation revocation law is just the sort of traditional probation statute the Haymond plurality deemed “to comport with the Fifth and Sixth Amendments.” Id. at 2381.
It is also noteworthy that when describing the maximum allowable sentence following a violation of supervised release, the Haymond plurality made no mention of the non-custodial portion of the sentence. The plurality opinion, in other words, does not pronounce, or even intimate, that as a matter of constitutional imperative, the time a defendant has already spent out of prison on supervised release must be added to the custodial sentence for purposes of determining whether the prescribed statutory maximum has been exceeded.
The panel’s focus on what the federal constitution requires is consistent with a federalization that has occurred in our state courts in recent years. Our state constitution has historically provided greater constitutional protections than the analogous federal provisions.