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April 20, 2010

SCOTUS discusses restitution deadlines in Dolan

As a fan of sentencing options beyond just incarceration, I am probably one of a very small group of sentencing geeks excited to find time this evening to read the transcript from today's SCOTUS oral argument in Dolan v. US.  The transcript is available at this link, and this press report about the argument suggests that some pretty interesting jurisprudential issues are in play:

The Supreme Court heard arguments Tuesday on whether a judge had the authority to order restitution more than 90 days after sentencing in the case of a hitchhiker's attacker. "The victim gets nothing because the judge waited too long," Justice Samuel Alito said, paraphrasing the appeal. "Do you think that is what Congress had in mind?"

For the first time since 1990, the justices agreed to interpret federal restitution law in the case of Brian Dolan, who beat up a hitchhiker and left him on the side of the road, bleeding, unconscious and with several broken bones. He racked up more than $100,000 in medical bills with the Indian Health Service.

Nolan was sentenced to one year and nine months in prison, with restitution to be determined later, "pending the receipt of additional information."   He was later slapped with a $104,650 restitution order, nearly six months after the 90-day deadline established in the Mandatory Victims Restitution Act.

Attorney Pamela Karlan urged the justices to overturn the restitution order, saying the lower court lacked the authority to extend the 90-day window. Toby Heytens, arguing for the government, acknowledged that the judge missed the deadline, but said it's up to Congress -- not the courts -- to set the consequences of a court's failure to act.

Of course, I welcome any and all fellow sentencing geeks to use the comments to make me feel less strange for getting excited about finding time to read the Dolan transcript.  (Alternatively, readers can tap into a different dimension of my multi-faceted geekdom by watching tonight's notable installment of ESPN's 30 for 30 series.)

April 20, 2010 at 06:30 PM | Permalink


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The real problem here is that I don't trust the courts to clean up their own mess. I have a suggestion: if the court misses the deadline why don't we take the 100K out of that big fat salary the judge got. The victim gets his money and the defendant doesn't have to pay for someone else's mistake.



Posted by: Daniel | Apr 20, 2010 6:51:58 PM

Agreed, it is the judge who failed to follow the statutory requirement here and it should be the judge who gets punished for that breach,

Posted by: Soronel Haetir | Apr 21, 2010 12:49:47 AM

couldn't agree more.

Posted by: rodsmith | Apr 21, 2010 2:17:22 AM

Too many times I have seen courts fall back on statutory (read arbitrary) deadlines to avoid meritorious defense arguments. I honestly cannot see what the difference is here. It does seem like there ought to be a victim's compensation fund that could help out here. It's not like this defendant actually has $100,000 anyway!

Posted by: Talitha | Apr 21, 2010 10:32:17 AM

I often agree with Soronel, but for me to agree with Soronel, Daniel and rodsmith all on the same thread.............hmmmmmmmmmmm.............I must be going soft in my old age.

Posted by: Bill Otis | Apr 21, 2010 11:24:24 AM

Punish the judge? How? Judges make errors all the time.

Posted by: federalist | Apr 21, 2010 11:35:54 AM

it wasn't just the judge. if the prosecutors wanted the restitution order, they should have informed the judge of the deadline and monitored to make sure an order was forthcoming (and/or gotten him the necessary information in time for him to comply with the deadline, and/or made a motion, before the deadline expired, for an equitable extension of the deadline on the grounds that it was impossible to access the necessary information before the deadline expired).

Posted by: Anon | Apr 21, 2010 11:55:31 AM

the problem here anon is that under this statement!

"with restitution to be determined later,"

tells me the judge knew there was an order pending. If the judge didnt' get any followup info from the state if that was in fact what he was waiting for... he should have simply ruled based ON THE INFO HE HAD! before the end of the required time. That at least would have met the law and tossed the FAILURE back into the laps of the jokers in the DA's office.

Posted by: rodsmith | Apr 21, 2010 5:22:47 PM

Following up on "anon" - The prosecutor had two other remedies he failed to employ, and the victim had one also. As the 90-day deadline approached -- let's say, around day 70 after the sentence of imprisonment was imposed -- the prosecutor should have filed a motion requesting a hearing -- if he had gotten the evidence of "loss" together that he should have had by the original sentencing date in the first place. Then, if the judge failed in response to that motion to set a date within the deadline, the government could have filed a petition for mandamus in the court of appeals to compel the setting of a hearing. So could the victim, under the CVRA. And if the govt didn't think to exercise its mandamus option, when the statutorily permitted 90 days expired without the "mandatory" restitution having been ordered, and judgment that the court had (prematurely) entered shortly after the principal sentencing thus became final, the government had 30 days to appeal from that judgment, which was, after all, illegal (for failure to include a mandatory penalty). When the prosecutor let that 30 day appeal period lapse, then the finality that our system seems to value so highly took precedence over all else. At that point, the sentence was what it was, with no restitution. (This is what the Supreme Court held two years ago with respect to overlooked mandatory prison terms, in the Greenlaw case.) If the Indian Health Service wanted money from the indigent Mr. Dolan for the care it had provided to the friend Dolan beat up in a drunken fight, they would then have to sue him for it. The criminal justice system had closed its book on this case at that point, and moved on to a thousand other things. That's what finality is about.

Posted by: Peter G | Apr 21, 2010 9:47:22 PM

I was sentenced to three years of probation the jude stated that the two attorneys come to a agreement prior to me leaving the state to "texas: back to my home in Florida to agree on restitution. they did not do so. it has been over a year plus and still no set amount has been made clear. I am going to have to go back to court in august to find out what I am supposed to pay but honestly it was a bogus charge to begin with and they are just trying to get money out of me. I was not at fault it was self defense. none the less I am trying to figure out if they can force me to pay when I have been on probabtion for a year and a half and still have not been givein any amount. is their a 90 day law that they would have had to set it up by then or am I reading this wrong.

Posted by: concerned | Jun 4, 2010 5:55:15 AM

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