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March 22, 2007

Judge Cassell laments limits of federal restitution

District Judge Paul Cassell issued an interesting opinion yesterday that seeks to explain why the current federal restitution statutes unduly limit the power for federal judges to make crime victims whole. Here is the first paragraph of US v. Garcia, No. 2:05-CR-00827 (D. Utah Mar. 21, 2007) (available for download below):

This case illustrates the need to reform our federal restitution statutes. Defendant Ruby Garcia assumed the identity of a victim (who will be called “H.F.” here) by ordering credit cards in H.F.’s name. Ms. Garcia then ran up thousands of dollars in charges on these and other cards. While Ms. Garcia was quickly caught, the damage to H.F. was substantial.  Although she was not liable for charges on the cards (the banks involved suffered that loss), it took H.F. considerable time and emotional energy to clear her credit.  Because H.F. is, in her words, “a working mother and wife,” time is “the most precious thing [she] has.”   Yet the court is without power to order any restitution for her lost time — in other words, the court is powerless to make H.F. whole for her losses from the crime committed against her. Because the court’s inability to provide full restitution here is a recurring problem, a short opinion describing the problem is appropriate.

Download cassell_order_re_restitution.pdf

March 22, 2007 at 08:12 AM | Permalink

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Comments

Please correct me if I am wrong, but isn't Judge Cassell a leading proponent of tossing out the exclusionary rule and forcing defendant's to sue the police for violation of their rights? If so, why doesn't he simply note that the victim could sue the defendant in civil court as well. Again, I may be wrong about the Judge.

Posted by: Ross | Mar 22, 2007 9:38:34 AM

Judge Cassell could do that, but then it would undermine his position that the authority to order restitution, and the quantity of restitution, should be exclusively in the realm of judges, and not juries.
Consider his actions in U.S. v Bedonie, contained in an excerpt from my law review note on restitution:
See, e.g., United States v. Bedonie, 317 F. Supp. 2d 1285, 1311-27 (D. Utah 2004). The judge in this case spent sixteen pages of the opinion determining the amount of restitution he would impose on two defendants to replace the two deceased victims’ lost income to their respective families. The judge employed an actuarial
expert to determine that the lost income of one victim was between $40,907 and $850,959. Id. at 1314. The lost income of the second victim was determined to be between $17,118 and $576,106. Id. at 1315. The court then considered, and rejected, making any race, sex, geographic, and/or consumption reductions in the potential
restitution awards. See id. at 1315-27. The first victim was an aspiring artist. Id. at 1320. Based on the opinions of his art teachers, the judge concluded that this first victim would have succeeded at being a professional artist. Id. at 1321. But, the judge concluded, he would only have been employed as a professional artist for 60% of the time. Id. The judge then decided to take the “lowest race-neutral” future lost income
estimate of this victim and to apply a 40% discount to it, resulting in a restitution
award of $446,665 for the first victim’s family. Id. It is well within the realm of possibility that a jury might have come up with a different restitution amount if it had considered the issue. The judge himself noted that the “assumptions one makes about the future of a victim . . . can make vast differences in the calculations.” Id. at 1324; see also United States v. Booker, 125 S. Ct. 738, 790 (2005) (Scalia, J., dissenting in part) (criticizing pre-sentence reports as “bureaucratically prepared” and “hearsay riddled”).

Posted by: Brian | Mar 22, 2007 11:08:36 AM

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