« Ninth Circuit to review en banc whether Washington's disenfranchisement of felons violates the VRA | Main | President Obama nominates Judge Patti Saris to take over as Chair of USSC »

April 28, 2010

Is anyone still preserving Apprendi/Blakely challenges to judge-determined restitution awards?

Thanks to the Supreme Court deciding only civil cases this week, I have finally found time to read the argument transcript from last week's SCOTUS oral argument in Dolan v. US (which is available at this link).  There are lots of interested aspect of the Dolan transcript ranging from frequent discussion of what is a final sentence to the potential impact of the 3553(a)'s requirement that district judges consider the need for restitution. 

But one particular line from the start of one of Justice Scalia's questions to the Government prompts my question in the title of this post.  Specifically, on page 31 of the Dolan transcript, Justice Scalia starts a line of questioning by saying "I think it's bad enough to have the issue of whether this victim suffered $100,000 damages decided by the judge...."  In addition, on pages 51-52 of the Dolan transcript Justice Scalia suggest with another line of questions that he is troubled by the fact that "it's the judge who finds that the victim suffered so much money" and that the judge does not use a beyond a reasonable doubt standard when making this finding.

In other words, it appears that Justice Scalia remains quite concerned that the constitutional requirements imposed on sentencing determinations in Apprendi and Blakely are not being applied with respect to the fact-finding involved in the setting of criminal restitution awards.  Thus, despite the fact that every circuit has rejected arguments to apply Apprendi and Blakely to restitution awards, there is at least one Justice (and perhaps there are more) who might be eager to give some new life to these kinds of claims.

I fear that few defendants even try to preserve Apprendi/Blakelychallenges to judge-determined restitution awards since these claims never got any real traction in lower courts after Blakely.  But the Dolan transcript suggests that perhaps these claims ought still be preserved and pressed all the way up to the Justices.

April 28, 2010 at 08:52 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Is anyone still preserving Apprendi/Blakely challenges to judge-determined restitution awards?:


Well, if defendants have a problem with it, then let them object at trial.

Posted by: federalist | Apr 28, 2010 9:59:32 PM

The defendant has no valid objection "at trial." The statutes (18 USC 3663 & 3663A) clearly state that the judge is to calculate and impose restitution "when imposing sentence." If Justice Scalia is correct, the statute is unconstitutional on its face under the Sixth Amendment, and there is no valid authority for the imposition of restitution in a federal criminal case at all. Why would a defendant object to that?

Posted by: Peter G | Apr 28, 2010 10:51:30 PM

Peter, because one must assert error at trial to preserve it for appeal.

Posted by: federalist | Apr 28, 2010 10:58:40 PM

Only if the error occurs at the trial, feddie. A federal criminal trial at which the prosecutor fails to prove that the victim(s) suffered loss is not a trial at which any error has occurred that adversely affects any right of the defendant, unless "loss" is an element of a charged offense. As I said, s/he has nothing to object to there. The objection must be made at sentencing, if and when the court attempts to impose restitution under an (allegedly) unconstitutional statute.

Posted by: Peter G | Apr 28, 2010 11:13:38 PM

"trial"=shorthand for District Court procedings.

Posted by: federalist | Apr 29, 2010 7:23:35 AM

federalist talks about trials as if they are commonplace.They aren't. They're rare, especially in federal cases.

federalist talks about defendants (citizens accused of crimes) as if they have bargaining clout. Hardly any do. Prosecutors run the show.

Defendants who aren't rich struggle just to pay the cost of negotiating a deal, typically tens of thousands of dollars. Trials in complicated cases typically cost hundreds of thousands of dollars...and the stakes soar for citizens who annoy the government by insisting on a trial.

Rich defendants face asset seizures that can make it difficult to pay for representation.

In some instances, huge restitution orders (imposed without regard for ability to pay and based on sloppy, expansive calculations of losses) amount little more than virtual life-sentences of government-monitored indentured servitude.

And contrary to the smug fantasies of folks like federalist and Bill, not every citizen who gets jammed up by the government is a grasping, venal outlaw deserving of all the misery the government can heap on them.

Posted by: John K | Apr 29, 2010 11:05:14 AM

In a regime where you must object to preserve error, I don't see how I said anything remotely controversial. Do I think this is a worthwhile issue--yes. But you generally gotta object to get a ticket to SCOTUS.

So let's see what the defense bar does.

And John K, I don't think that's anywhere close to a fair assessment of my views. I've written about clemency, harsh sentences and lots of things. Yes, I believe that egregious crimes deserve harsh penalties, and my risk assessment is different from yours, but I also believe that society, particularly with the internet etc., needs to be rational when it comes to people suffering long-term debilitating consequences to stale crimes. Perhaps if you read what I write instead of simply seeing a bete noire, you'd have a better appreciation of my views.

Posted by: federalist | Apr 29, 2010 11:38:26 AM

Well, if defendants have a problem with it, then let them object at trial.

When Doug referred to “preserving” the challenge, that is exactly what he meant. We all understand that you need to object at trial, or you (in most cases) forfeit the issue.

Posted by: Marc Shepherd | Apr 29, 2010 1:40:32 PM

John K --

"And contrary to the smug fantasies of folks like federalist and Bill, not every citizen who gets jammed up by the government is a grasping, venal outlaw deserving of all the misery the government can heap on them."

Actually they're not fantasies, John. Unlike you, who has never litigated a case in your life, I litigated well over a hundred. I have experience; you have ideology.

And, contrary to that ideology, not every rapacious swindler who gets caught at it is a gullible babe-in-the-woods deserving of all the fawning you can heap on them.

I can't wait for you to start in on the poor, innocent, put-upon zillionaires at Goldman Sachs who made it hand over fist while knowingly leading their clients to financial ruin. Their sleazy, evasive, "everybody else did it" performance at the Senate hearing was a sight to behold.

Posted by: Bill Otis | May 1, 2010 8:54:28 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB