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May 20, 2005

7th Circuit coverage of restitution

In this recent post, I spotlighted Blakely's applicability to restitution and other non-prison sentences as an issue that merits Supreme Court attention sooner rather than later.  Today in US v. Pree, No. 03-1516 (7th Cir. May 20, 2005) (accessible here), the Seventh Circuit had ocassion at the end of a long opinion to review restitution's status post-Blakely. The Pree court reiterates the circuit's prior holding in George (discussed here) that restitution is a civil remedy not governed by Apprendi, Blakely and Booker, and in footnote 20 the court adds:

Other courts of appeals also have held that Apprendi does not apply to orders of restitution. [Cites from the 3d, 6th and 8th Circuits.]  However, we acknowledge that "[w]hether restitution is a criminal punishment and whether restitution is subject to Apprendi, Blakely, and Booker are by no means settled questions in courts across the country." Garcia-Castillo, 2005 WL 327698, at *5 n.4 [10th Cir.] (collecting cases).

As detailed in this post, some academic commentators have forcefully argued that Blakely/Booker should be applied to federal restitution.  And, in this context, it bears recalling that virtually all lower courts held that Apprendi had no applicability to guidelines schemes until the Supreme Court in Blakely corrected that misunderstanding.

May 20, 2005 at 02:36 PM | Permalink


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