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June 14, 2010

Restitution, victims' rights, and a classic battle of law versus equity with a twist

The more I reflect on the Justices' work today in the Dolan restitution ruling (available here), the more I think the myriad legal issues surrounding restitution and victims' rights at sentencing will be confounding lower courts and SCOTUS for years to come. I say this largely because, as Dolan shows, issues of restitution and victim's rights in the operation of modern criminal justice systems often present lots of hard questions concerning how to balance law and equity in criminal justice case processing.

As noted here in my first post on Dolan, what makes the ruling so interesting is the composition of the 5-4 ruling: Justice Breyer managed to get Justices Alito, Ginsburg, Sotomayor and Thomas to agree on a pro-victim approach to judicial authority to impose restitution outside statutory time limits, while Chief Justice Roberts authors a sharp dissent accusing the majority of undermining "a system of rules"  which garners the votes of Justices Kennedy, Scalia and Stevens.  I think the vote break-down is so notable and unusual largely because the equitable approach to the applicable restitution law adopted by the majority in this case helps a victim at the expense of a defendant (in contrast to the usual criminal case in which the defendant is urging a court to do equity and the state is urging fidelity to "a system of rules").

I predict that lots of future debates over restitution and victims' rights at sentencing — on issues ranging from who qualifies as a victim to how causation principles should limit restitution awards — will boil down to the same sort of fundamental debate over law and equity that plays out in Dolan.  In this notable first round, it appears that an equitable outcome for victims has carried the day.  But I suspect that, in the many brewing future battles, defendants will have some success arguing that fidelity to the rule of law has to generally carry the day.

June 14, 2010 at 02:45 PM | Permalink


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To make the Supreme Court more conservative, less irresponsible in its toying with the lives of Americans, the number of Justices should be changed to an even number. Tied vote decisions would let the lower court ruling stand. The lower court ruling likely came from a prior Supreme Court ruling as well. The Supreme Court reverses itself in about 1 or 2% of cases. However, those 5-4 decisions are disturbing, and encourage gaming the court by submitting wacky claims.

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