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November 28, 2007

Restitution, victim rights and judicial activism

Thanks to this post at Crime & Consequences, I see that earlier this week the California Supreme Court ruled in People v. Giordano, S138382 (Cal. Nov. 26, 2007) (available here), that a sentencing judge can order restitution to the spouse of a homicide victim for his or her future economic losses.  The majority opinion includes an effective overview of the evolution of the state’s restitution scheme.  And the lone dissenter, Justice Kennard, indirectly accuses the majority of inappropriate judicial activism based on their personal sympathies for the victim. Here is how the dissent begins:

The majority holds that in a criminal proceeding the sentencing court may order a defendant who has been convicted of a homicide crime to pay the deceased victim’s surviving spouse, as restitution, a portion of the estimated income that the deceased victim would likely have earned.  In the tragic circumstances of this case, that holding is certainly appealing. But the Legislature has established other methods by which a surviving spouse may obtain restitution for loss of economic support resulting from a homicide victim’s death — the surviving spouse may bring a civil wrongful death action (Code Civ. Proc., § 377.60) against the defendant or apply to the state Restitution Fund established for crime victims (Gov. Code, § 13950 et seq.).  A close review of the pertinent legislative scheme reveals several reasons to doubt that the Legislature has, in addition to these two clearly established methods for obtaining restitution for lost support, also authorized sentencing courts to include this category of loss in a direct restitution order.  It seems more likely that the Legislature reasonably decided that the criminal sentencing process is ill suited to making the often exceptionally complex damage calculations that are required.

Because I do not think the term "judicial activism" has any real meaning (and have been particularly troubled by its use as an epithet), I do think the California Supreme Court might be accused in this case of "making policy from the bench."  Apart from the specific ruling here (which also merits comment), I wonder what commentors think about the concern that the Justice here are letting personal policy views color their legal analysis.

November 28, 2007 at 09:27 AM | Permalink


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I don't see this as much of a suprise. Once the camel's nose of "victim's rights" got under the tent of criminal procedure, it has become a runaway train and presented difficulties for all actors in the system, judges, prosecutors and defense attorneys.

Posted by: | Nov 28, 2007 10:16:17 AM

On a related note, the 10th Cir. has recently held that a district court's restitution order, including the lost income of a 3-month old homicide victim was not improper under the Mandatory Victim's Restitution Act. The Court explained that "[t]he district court would also certainly have been on firm ground ... to have left such complex matters to a civil determination," but nevertheless held "that an award of lost future income for a deceased infant is not precluded by the MVRA."
US v. Serawop, No. 06-4022 http://www.ca10.uscourts.gov/opinions/06/06-4022.pdf

Posted by: DEJ | Nov 28, 2007 11:55:57 AM

Unless you intend on carving the phrase "judicial activist" on someone's tombstone, I believe the word "epitaph" in your final paragraph should have been "epithet" instead.

In response to the actual substance of your commentary, while I tend to agree with Judge Kennard's dissent I could see the majority deciding that - as it was almost inevitable that a civil suit would follow after a murder conviction - it would save time and money and suffering by the victim's family to simply combine the two proceedings.

(per your request - I'm just a semi-retired computer programmer with a libertarian view of how the law should work.)

Posted by: Joe Power | Nov 28, 2007 12:00:50 PM

"Judicial activism" is a useful term for the practice of making up requirements that aren't really in the Constitution or laws to advance a judge's policy preferences. The fact that the term is sometimes misused is not a good enough reason not to use it where it fits.

I don't think it fits here. The statute in question is section 1202.4 of the California Penal Code. It's a long section, but here are some pertinent provisions:

"(a) (1) It is the intent of the Legislature that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime."

"(k) For purposes of this section, 'victim' shall include all of the following:

(1) The immediate surviving family of the actual victim....

(3) Any person who has sustained economic loss as the result of a crime and who satisfies any of the following conditions:

(A) At the time of the crime was the parent, grandparent, sibling, spouse, child, or grandchild of the victim."

The restitution ordered in this case is within both the letter and the spirit of the statute, IMHO.

Posted by: Kent Scheidegger | Nov 28, 2007 12:37:35 PM

The use of the term "Judicial Activism" is an excuse for crappy lawyering. It is so much easier to call a judge an activist than to say, "I couldn't convince him." It really doesn’t have any place in serious legal discourse and I wish the dissent had not used it (even though I slightly agree with him in my reading of the statute).

All in all, I am not too alarmed by this ruling. First, it is unenforceable. Second, it is purely a matter of statutory construction as to what constitutes "loss."

But, this is not the end of the chapter.

Indeed, it will probably mean that in the future the "victims" of the crimes can and will be subject to a more glaring spotlight in order to determine how much economic benefit they really provided. Many victims of crimes are hardly innocent and do a lot of damage to society and their families. It is now fair game to argue introduce evidence that someone that was murdered likely would have provided little support to the spouse anyway, or that the spouse would have wasted the money because she was irresponsible. Oh, the fun we will have!

And what about discovery? Oh, there might be 7th amendment issues, too.

Posted by: S.cotus | Nov 28, 2007 1:04:30 PM

Joe: Thanks for the proof-reading; fixed.

Kent: The activism here is on the types of economic recovery being allowed here. There is no doubt that the Cal. legislature want this woman to collect for out-of-pocket losses as part of a criminal restitution punishment. But do you think the legislature really thought it was authorizing a "future earnings inquiry" as part of making restitution available?

Or, to put this another way, it is at least fair to suggest that Judge Kennard's dissent shows more judicial restraint? If not, you end up confirming my instinct that judicial activism is an empty concept that can be constructed any which way.

Posted by: Doug B. | Nov 28, 2007 2:03:11 PM

What of the incentive to press charges, even false charges, for financial gain? Isn't this why jail house snitches are so unreliable?

Impossible! You say. No, see Great Dick, Babe

Gang rape or orgy? Let’s go to the video
By R. Scott Moxley

Sorry, that's the title of the piece.

She was subsequently convicted of fraud for receiving victim's compensation among other charges.

Posted by: George | Nov 28, 2007 3:12:06 PM

Doug, I think you are dead wrong. Where is the parsimony you advocate found in the statute? Losing the breadwinner of the family is an economic loss, and the statute refers to "economic losses", not out-of-pocket losses and does not differentiate between different types of out-of-pocket losses. Perhaps the legislature didn't intend this specific result, but we don't usually think about what the legislature really intended in a specific case (a tough chore), we look at the words themselves as an expression of the legislative intent, unless the result would be absurd. Clearly it is not absurd here. Typically, a legislature is presumed to have meant what it said, and what it said, with no stretch, picks up the lost earnings of a spouse, since that is, without doubt, an economic loss. It is not the place of courts to craft exceptions like the one you advocate, and it's an interesting definition of judicial activism which includes following the letter of a statute.

Posted by: federalist | Nov 28, 2007 3:26:32 PM

Am I to trust, federalist, that you will be still making this point when some sentencing judges in California start holding sentencing hearings to see what future economic losses might be attributed and ordered as to any and all defendants convicted of domestic violence? Or how about when consumers seek restitution from criminal courts in conjunction with any corporate violation of California's Corporate Criminal Liability Act?

The key hook, in my view, is the award --- in a criminal sentencing proceeding --- of FUTURE economic losses attributable to a crime. Because I am a big fan of restitution as a punishment (especially instead of long jail sentences), I like a robust interpretion of restitution statutes. But if/when some clever members of the plaintiffs bar pick up the opportunity to use Giordano as a way around tort law in California, I will be eager to see if your view of this decision remains the same.

Or perhaps you have forgotten that Jerry Brown is the chief criminal law enforcer in California...

Posted by: Doug B. | Nov 28, 2007 3:51:32 PM

it is at least fair to suggest that Judge Kennard's dissent shows more judicial restraint?

I'm curious as to precisely what Prof. Berman means by this. There are many out there who seem to confuse "judicial restraint" with apathy and laziness... and I wonder if this is one of those cases. It looks to me like the majority and the dissent simply read the statute two different ways, and that neither interpretation is particularly unreasonable.

Posted by: | Nov 28, 2007 3:54:14 PM

If indeed the restitution statute can be read in two different ways, in the criminal context, the interpretation that is more limited should be chosen pursuant to the "rule of lenity" principle of statutory construction.

I think the award of future earnings in criminal restitution orders is a slippery slope that encourages the government's habit of seeking reimbursement for speculative and hypothetical (read: unreal) losses. For example, in United States v. Quarrell, 310 F.3d 664 (10th Cir. 2002), the government sought "restitution" for the lost archeological value of a ancient Indian site that had never been excavated and was unlikely to ever be excavated. The original restitution order was based on what it might cost to perform a full-scale archeological dig, should one ever be done. In that case, the Tenth reversed, finding the award too speculative. Awards of potential future lost earnings are similarly speculative and have no place in the criminal court. As the housing loan crisis continues to unfold and produce criminal fraud prosecutions, will there be restitution awards for the estimated loss of value of neighboring houses? or damage to the local economy? Who gets the money? In the context of domestic violence defendants, should the defendant have to pay restitution to the family for the income he couldn't earn while in jail? I see a lot of potential law journal articles for your students, Doug.

Posted by: defense attorney | Nov 28, 2007 4:23:39 PM

I have not yet read the case. But please do not assert that the lost earnings of a spouse is "without doubt, an economic loss," because I have a feeling the entire issue in the case was precisely that. You might ultimately be correct that future earnings of a killed spouse is "economic loss" within the statute. But you don't persuade anyone by saying it's "without doubt."

In fact, if it was "without doubt," then the Court could have written a one sentence opinion.

Posted by: DEJ | Nov 28, 2007 4:25:13 PM

If indeed the restitution statute can be read in two different ways, in the criminal context, the interpretation that is more limited should be chosen pursuant to the "rule of lenity" principle of statutory construction.

I doubt that either the majority or the dissent would concede ambiguity in the statute. I think they both think that they have it right, and therefore--in my view--there's nothing illegitimate, unprincipled, or "unrestrained" about either opinion... My point was that this is a simple disagreement about what the correct answer is to a tough legal question, not a clash of judicial philosophies.

Posted by: | Nov 28, 2007 4:29:14 PM

Doug, is there a temporal limitation on the economic losses? Presumably, future medical expenses would be covered, no?

As for corporate crimes, if the corp. is convicted of a crime, the statute's meaning is plain: economic losses get covered. Now, there may be issues with causation etc., but that's not really the issue in Giordano, is it?

Courts, in the absence of absurd results or obvious scrivener's errors, don't sit as fixit men cleaning up statutes that may be a bit overbroad, nor are they really supposed to make distinctions that aren't found in the statute (e.g., temporal limitations on wages, but not meds). It may surprise you Doug, but I am pretty consistent on these things. Statutes generally should be enforced as written, whether I agree with the results or not. It's called democracy, and I believe in it.

DEJ, lost wages are economic losses. If they are not, economic losses, what are they?

Where this statute has the opportunity for mischief is that it disincentivizes prisoners from suing the state for 8th Amendment violations. Any monetary damages would go to the victim . . . .

Posted by: federalist | Nov 28, 2007 4:41:26 PM

Personally I find Justice Kennard's opinion more persuasive in light of the availability of restitution funds, civil damages for wrongful death, and the differences between restitution sentencing and civil liability actions, but I can see how the Court reached its opinion. On the other hand, if you are an advocate of judicial restraint that borders on abdication of the judicial role, I would think you would foam at the mouth, given what the majority opinion does. Then again, you might find some wiggle room in the "nonexhaustive" categories of economic loss outlined in the statute at issue, but my guess is that a consistent advocate of "strong" judicial restraint would come out the same way Justice Kennard did. Which goes to show that "judicial activism" is simply in the eye of the beholder.

Kent, I think, makes a good point that critics of the term "judicial activism" have been making for some time: the interpretive role of the judiciary should not be confused with bench-based legislating. But it does not resolve the issue here, because it is fair to say that most judges with strong deference to the legislature would not read future economic support loss into the nonexhaustive but enumerated categories of economic loss because it does not fit into those categories very well and seems different in kind, and there are other avenues provided by the restitution fund and civil statutes.

This reminds me of the Michigan Supreme Court's decision this year in a wrongful death suit. A defendant raped and killed a woman in 1986, but was not identified until 2002. That court (dominated by Federalist Society members purporting to be judicial conservatives), in a vote along those same philosophical lines, held that the civil claim was time barred. In effect, if someone is murdered in Michigan, their family cannot recover if the statute of limitations passes them by because the state has not apprehended the killer. As federalist might say, the result is absurd, but there are those pesky judicial activists, in the form of four Republican Federalist Society members.

Posted by: | Nov 28, 2007 4:52:52 PM

I'm not sure the result is absurd in the Michigan case, at least how it's used when looking at statutes. Without having read the statute, I could easily see myself applying the law as written and not allowing the claim to proceed. Not because I think that such a claim should be time-barred, but because I think that when courts start rewriting statutes, democracy suffers. And our democracy is more important than a murder victim's family getting to sue the murderer. That sounds harsh, and it is, but courts rewriting statutes creates a lot of harshness too.

Posted by: federalist | Nov 28, 2007 5:42:40 PM

"lost wages are economic losses. If they are not, economic losses, what are they?"

First, we are not just talking about “lost wages.” We are talking about lost future wages of a deceased individual. And lost future wages of a deceased individual are not necessarily "economic losses" that the deceased individual's family personally suffers.

Second, they may be losses suffered by the decedent, but not the family (even though the family is a “victims” according to the statue), or they may be collateral losses not subject to (in the words of the statue) “reimbursement,” or they may be no loss at all. The term "economic loss" is controlled by the statute's interpretation.

The point of my comment, federalist, is that if you are trying to convince anyone that this was "economic loss," as that phrase is used in the statute, merely saying it is "without doubt" does not get you anywhere. The fact that you think it is “without doubt” but do not support this bald assertion, and the fact that you cannot see any other possibility, in my mind, shows how little you have actually given this issue critical thought. (Again, you may or may not be correct...I am just suggesting that you to actually explain your position rather than saying it is “without doubt.”).

Posted by: DEJ | Nov 28, 2007 7:53:28 PM

Isn't this, ultimately, the 1000+ year old undying question. How much of criminal law is wergild and how much is retribution. I suspect - and hope -- what Giordano signals is that we are moving from the latter and towards the former. A pound of flesh is great, but it doesn't make a victim whole, or in this case, ameliorate the economic damages suffered by the victim's family members.

Posted by: karl | Nov 28, 2007 8:33:30 PM

DEJ, if you don't get that loss of future wages of someone upon whom you rely for support is an economic loss, then I don't know what to say. In any event, the issue is really not whether lost wages are economic (they are), but whether the legislature really meant what it said, given the expansiveness of the remedy.

Of course, all you really have to do to figure out that the statute is clearly dealing with lost wages is to look at one member of the benefited class, namely children/grandchildren. Generally speaking, what other "economic" damages would be suffered by children/grandchildren besides the lost income of their parent/grandparent?

Finally, let's evaluate this hypo--victim is assaulted, lingers for a year, and then dies of injuries. Let's say that the mother quits her job to be with murder victim. Clearly the lost wages (at the very least up until death) in such a case would be compensible. Well what if the mother were a small business owner? The losses would be just as real, just harder to quantify. But does that mean that they wouldn't be compensible? That's what the reasoning in the dissent seems to suggest. But the problem is that the statute doesn't distinguish between easy to quantify economic losses and hard to quantify economic losses.

This really is an easy case.

Posted by: federalist | Nov 28, 2007 10:54:54 PM

Federalist, I think you are missing the point about the unusual nature of making these determinations in the context of a criminal sentencing proceeding and the clear availability of civil recourse. Let's play out your hypo and assume the mother's small business (let's call it a landscaping company in which son was main employee) closes.

Should mom be able to recover --- as part of the criminal SENTENCING in which the drunk involved in a bar fight is sentenced for assault --- all the future earnings she can claim the son would have brought into the business? I think it is fascinating to debate this issue in the context of a tort recovery for wrongful death, but I also think it's weird to say it is "easy" to conclude that the California legislature would want this issue resolved by a criminal law judge as part of the drunk guy's state sentencing (which was otherwise resolved a year before).

Also, when the restituion order is to be imposed in this case, could the sentencing judge then order a reduction in the assault prison term on the theory that it is important now to allow the defendant to be able to go work to be able to pay the restitution award?

Posted by: Doug B. | Nov 29, 2007 9:31:57 AM

It's a weird scheme. So what? And the issue is not what the ideal scheme should be, but what the legislature has adopted. When the Clean Air Act was adopted, that was a very weird scheme, and people to this day have a hard time with the mandatory attainment scheme. Once again, so what?

The legislature has seen fit to compensate for economic losses, which encompasses lost wages. There is no temporal limitation. There is no distinction between easy to calculate lost wages/income and hard to calculate lost wages/income. Lost support for spouses/children is clearly contemplated, given that bulk of economic losses by children will be the loss of support, the bulk of which typically comes from lost income. In fact, it would be bizarre indeed to say that a child's lost support from a murdered parent is not covered by the term "economic loss" because if that's not covered, the legislature's addition of "children" to the class would have been almost meaningless, given that children rarely have any economic losses from the victimization of the parent other than the loss of support.

Yes, Doug, this is an expansive statute, and with respect to your hypo, there may be an issue with respect to causation. But compensating a widow for the future loss of support certainly is not an absurd result, given the broadness of the statutory language, economic loss. And if it's not an absurd result, the court's duty is clear--follow the statute.

Posted by: federalist | Nov 29, 2007 11:03:40 AM

I think that the court's action in ordering restitution paid to people other than direct victims who have clearly identifiable losses such as through fraud, larceny, damage to property, and medical bills is completely contradictatory to the purposes of the civil justice system. If a criminal defendant has the resources to pay a civil claim, a tort law suit is a much preferred alternative, especially given that in private tort law can provide punitive damages. The purpose of the criminal justice system should be to recognize the wrong against society not the individual or worse, relatives of the individual. That is what the civil system is for. It is wrong for the criminal justice system to treat a person who murders a homeless person, a child, or a housewife (all of whom would have no direct financial losses) differently from a person who is working and earning money. To make compensation to the families based on economic earnings part of the criminal punishment in effect says that a homeless person, child, poor person, childless person, or a housewife as a victim is worth less than a wealthy person with children. While in civil law, those distinctions might be acceptable (although punitive damages and damages for pain and suffering are available and should be available to make sure that a person with means does not escape liability based on having a poor victim) it is at best an example of class bias - effectively saying that some victims are worth more than otehrs - and at worst an abomination of justice since the goal of criminal justice is to vindicate society not the individual and thus has no room to put relative values on the lives of the victims (which is why so called "victims rights" should have no place in criminal law - and yes, I have had a close relative murdered, thanks for asking).

If the person is judgment proof (unable to pay civil tort damages), any sort of restitution from the criminal case is to pay is purely symbolic anyway - or a sneaky way to assure that people will always be under the supervision of the courts (I know when I worked as anj assistant public defender we had clients in their 30s who were still under juvenile probation for not paying their restitution, court costs, and the like to the juvenile courts). Every time I had a client hit with a large restitution order, my thought was "yeah right, like they'll ever see that money."

Posted by: Zack | Nov 30, 2007 12:43:17 PM

Funny, Zack, how your argument never gets to the language in the statute. The arguments about class bias etc. are better addressed to the legislature, and not the courts.

Posted by: federalist | Nov 30, 2007 2:49:03 PM

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