EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, January 8, 2019

Why Justices Gorsuch & Sotomayor Are Right About the Sixth Amendment Applying to Criminal Restitution

In Apprendi v. New Jersey, the United States Supreme Court held that any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt. So, let's say that Dan attacks Vince and is charged with battery, which has a statutory maximum sentence of 5 years in State X. Let's also say that State X has a sentencing enhancement of up to 3 years for hate crimes. Finally, let's say that the jury finds Damn guilty of battery and is not given a special jury questionnaire asking it if the crime was a hate crime.* Pursuant to Apprendi, even if the prosecutor presented compelling evidence during sentencing that Dan's crime was a hate crime, the judge could not impose a total sentence of more than 5 years. So, for instance, the judge could not impose a sentence of 4 years for the crime and 2 years for the hate crimes sentencing enhancement because that would lead to a total sentence of 6 years. According to the Apprendi Court, such a sentence would violate the Sixth Amendment right to trial by jury counsel.

Recently, in Hester v. United States, the United States Supreme Court was presented with an interesting question under Apprendi: Does it apply to the imposition of criminal restitution?

In Hester, Marco Manuel Luis

pleaded guilty to two counts of conspiring to engage in transactions with money derived from specified unlawful activity....The specified unlawful activity underlying those convictions was bank fraud. Mr. Luis worked as a mortgage broker, and he aided and abetted two of his co-defendants when they lied on their applications to obtain loans to purchase two homes. After the district court imposed Mr. Luis’s custodial sentence, the government asked that the court also order restitution to the two alleged victim banks, pursuant to the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. §3663A. That statute requires a district court to make fact findings to determine how much, if any, restitution should be ordered....

Mr. Luis...argued that the district court could not, consistent with the Fifth and Sixth Amendments, impose restitution because there were no allegations in the indictment with respect to restitution, and when Mr. Luis pleaded guilty he did not make any admissions that would support a restitution order. Mr. Luis pointed out that restitution under the MVRA is part of a criminal sentence, and therefore the district court could not increase the available sentence based solely on its own fact findings. For this, Mr. Luis relied on Southern Union Co. v. United States, 567 U.S. 343, 346 (2012), which applied the principles set out in Apprendi v. New Jersey, 530 U.S. 466 (2000), in the context of criminal fines. The district court rejected that argument, noting that the fines involved in Southern Union were capped by a statutory maximum, whereas restitution under the MVRA has no statutory cap. Thus, according to the district court, its imposition of restitution could not exceed an otherwise applicable statutory maximum, meaning it could not violate Apprendi’s rule.

The Ninth Circuit, however, rejected Luis's argument, and yesterday, the United States Supreme Court did not grant certiorari (did not agree to hear Luis's appeal).

There was, however, an interesting dissent by Justices Gorsuch and Sotomayor. In pertinent part, the Justices argued as follows:

The effects of restitution orders...can be profound. Failure or inability to pay restitution can result in suspension of the right to vote, continued court supervision, or even reincarceration. Lollar, What Is Criminal Restitution? 100 Iowa L. Rev. 93, 123–129 (2014).

The ruling before us is not only important, it seems doubtful. The Ninth Circuit itself has conceded that allowing judges, rather than juries, to decide the facts necessary to support restitution orders isn’t “well-harmonized” with this Court’s Sixth Amendment decisions....Judges in other circuits have made the same point in similar cases....

Nor does the government's defense of the judgment below dispel these concerns. This Court has held that the Sixth Amendment requires a jury to find any fact that triggers an increase in a defendant's "statutory maximum" sentence....Seizing on this language, the government argues that the Sixth Amendment doesn’t apply to restitution orders because the amount of restitution is dictated only by the extent of the victim’s loss and thus has no "statutory maximum." But the government’s argument misunderstands the teaching of our cases. We’ve used the term "statutory maximum" to refer to the harshest sentence the law allows a court to impose based on facts a jury has found or the defendant has admitted. In that sense, the statutory maximum for restitution is usually zero, because a court can’t award any restitution without finding additional facts about the victim's loss. And just as a jury must find any facts necessary to authorize a steeper prison sentence or fine, it would seem to follow that a jury must find any facts necessary to support a (nonzero) restitution order.

Without having delved too deeply into the issue, I think I agree with Justices Gorsuch and Sotomayor. It would seem odd that a defendant is entitled to a jury determination of facts that could potentially increase his term of incarceration by only a day or two but not be entitled to a jury determination of facts that could potentially increase the amount of money he has to forfeit by hundreds of thousands or even millions of dollars.

As Justices Gorsuch and Sotomayor note, this understanding of the Sixth Amendment is also historically rooted:

The Sixth Amendment was understood as preserving the "'historical role of the jury at common law.'"...And as long ago as the time of Henry VIII, an English statute entitling victims to the restitution of  stolen goods allowed courts to order the return only of those goods mentioned in the indictment and found stolen by a jury....In America, too, courts held that in prosecutions for larceny, the jury usually had to find the value of the stolen property before restitution to the victim could be ordered....And it’s hard to see why the right to a jury trial should mean less to the people today than it did to those at the time of the Sixth and Seventh Amendments’ adoption.


*Let's also assume that Dan did not testify or stipulate to the crime being racially motivated.



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"According to the Apprendi Court, such a sentence would violate the Sixth Amendment right to counsel." I think you meant "right to jury trial," no?

Posted by: DAD | Jan 9, 2019 5:27:41 AM

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