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