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May 15, 2005

Reviewing the status of restitution

I have noted in a number of prior posts the growing importance of restitution orders in state and federal courts and the uncertainty of Blakely's applicability to such orders (examples here and here).  Shedding light on this important topic is a note about to be published in the Fordham Law Review that the author, Brian Kleinhaus, has made available for me to post.

This note, which is entitled "Serving Two Masters: Evaluating the Criminal or Civil Nature of the VWPA and MVRA Through the Lens of the Ex Post Facto Clause, the Abatement Doctrine, and the Sixth Amendment," is available for downloading below.  It reviews the history of restitution and the two main federal restitutionary statutes, as well as the application of Blakely/Booker to federal restitution. Here is an excerpt providing highlights:

This Note argues that restitution is, and always has been, an additional method of punishing defendants that also increases society's recognition of the harm done to the individual victim of the crime, and that therefore restitution orders should be universally understood as criminal punishment. The legislative history of the VWPA and MVRA lends significant support to this Note's contention that Congress was aware of, and agreed with, the punitive and compensatory intent of restitution. The recent efforts by some federal courts to separate the underlying principle of restitution as punishment from its co-underlying principle of restitution as compensation have led to judicial decisions that are inconsistent with these original twin aims. Therefore, this Note asserts that restitution should never be separated from its penal, rehabilitative core, even if it also has a compensatory core as well.

Download kleinhaus_note_on_restitution.pdf

May 15, 2005 at 07:36 PM | Permalink

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Comments

Hi I have been ordered to pay restitution to the Federal Goverment. Can you give me some insight to what my rights are and what the Federal Goverment can do if I don't pay it.

Posted by: Tim Beebe | Jan 31, 2006 2:46:54 PM

I ma a brother of a person sentenced to 9 yeras in Federal prison for Fraud and Tax evavsion. He is to pay back 18 million dollars although this is not the true amoutthat was lost by fincial institutions, aftert seizing properties that were being built. While in prison the money that he recieves from his brothers and sisters , me being one , is being used at a rate of 100.00 a month to start the pay back of his restitution . We have been told that they are not allowed to take this money from his funds . I was wondering if this is accurate . His wife has desserted him so his brotheres and sisiters are left to help him with his allowance while in prison .

Posted by: Michael F Dwyer | Dec 30, 2006 1:54:17 PM

My brother was convicted of interstate theft, served 11 months in a federal prison, completed probation but still owes restitution. The total amount of restitution was 100,000.00 This amount is to be paid by him and his partner. Brother has already paid 30,000 but partner has paid much less. Is there anyway that my brother can just pay half and his partner be responsible for the other half. Where does he write or contact the dept. he needs to send money to as he has no tbeen contacted by the restitution dept since completing probation. Any information you can provide would be of great assistance.

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