« Has Justice Scalia won the legislative history war despite losing Dorsey battle? | Main | A recap and request concerning today's big SCOTUS sentencing action »

June 21, 2012

Doesn't Southern Union suggest Sixth Amendment limits judicial factfinding for restitution punishments?

As explained in this post, I think the really consequential sentencing ruling from the Supreme Court this morning came in Southern Union (basics here), in part because SU suggests that the Ice ruling cutting back on the Sixth Amendment's reach may now be just an outlier in the Court's (ever expanding?) Apprendi jurisprudence.  And, as the question in the title of this post highlights, the majority opinion in Southern Union leads me to expect the next (very big) battle over the boundry lines of Apprendi-land seems likely to concern judicial factfinding to permit the imposition of restitution awards at sentencing.

The opinions in Southern Union do not discuss restitution at allBut in Ice, the majority opinion (comprised of the three SU dissenters along with Justices Stevens and Ginsburg) stated in dicta a concern about extended the reach of Apprendi to "the imposition of statutorily prescribed fines and orders of restitution." 555 U.S. at 171.  The 6-3 ruling in Southern Union not only official extended Apprendi's Sixth Amendment rule requiring jury factfinding to "the imposition of statutorily prescribed fines," it also dropped a footnote to make clear that the dicta in Ice should not be interpretted or applied to cut back on Apprendi in other contexts. 

More broadly and more importantly, much of the language and methodology adopted in Southern Union strongly suggest that there are now six justices (including Justice Ginsburg, the author of the opinion in Ice) still prepared and perhaps eager to keep expanding the border of Apprendi-land in order to keep defendants' Sixth Amendment rights meaningful.  Consider, for example, this passage:

In all such cases [in which the amount of a fine is calculated by reference to particular facts], requiring juries to find beyond a reasonable doubt facts that determine the fine’s maximum amount is necessary to implement Apprendi’s “animating principle”: the “preservation of the jury’s historic role as a bulwark between the State and the accused at the trial for an alleged offense.” Ice, 555 U. S., at 168. In stating Apprendi’s rule, we have never distinguished one form of punishment from another. Instead, our decisions broadly prohibit judicial factfinding that increases maximum criminal “sentence[s],” “penalties,” or “punishment[s]” — terms that each undeniably embrace fines. E.g., Blakely, 542 U.S., at 304; Apprendi, 530 U.S., at 490; Ring, 536 U.S., at 589.

In short form, because the terms “sentence[s],” “penalties,” or “punishment[s]” are all terms that also undeniably embrace restitution awards that are imposed at a criminal sentencing following a criminal conviction, I believe the answer to the question in the title of this post has to be "YES!".

June 21, 2012 at 01:34 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Doesn't Southern Union suggest Sixth Amendment limits judicial factfinding for restitution punishments? :


I don't agree Doug.

I don't believe that the purpose of restitution awards are to punish or to sentence. Their purpose is to make the victim whole. I made this point when were were talking about SU when the case was argued.

Restitution is fundamentally a different beast than fines, imo.

Posted by: Daniel | Jun 21, 2012 2:09:14 PM

Fair point, Daniel, but for restitution to be imposed in a criminal case, the state (rather than the victim) must seek this punishment/penalty/sentence and the victim is not a party (and not generally allowed to be a party) to the proceedings. So, even if as a matter function the purpose of restitution is different than fine, as a matter of form, restitution as a criminal sanction is more like a fine than a tort judgment.

Posted by: Doug B. | Jun 21, 2012 3:48:12 PM

I concern that restitution and fines are two very different things. Yes, Apprendi supports the notion that a conviction that authorizes a restitution award must be made by a jury for a restitution award to be allowed. But, a fair reading of a typical statute is a conviction provides authority for any restitution award without a dollar cap, rather than a reading that calls for itemized determination of the amount of the restitution award by the jury. Certainly, Southern Union has not posed the issue of jury determination of restitution award amounts on the facts it considered, and the Ice precedent was not expressly overruled as to restitution, so it remains the governing law.

Also, even though a victim is not a party to the proceeding that produces a conviction, it is not at all obvious, as a general matter at least, that a victim does not have standing as a party in its own right independent of the prosecutor's office's involvement to participate in restitution hearings, possibly to appeal restitution awards, and to enforce a restitution award in favor of the victim without involvement of a prosecutor. Critically, the People get the collected fine, while the People do not get the restitution award, and constitutional criminal proceedure is about excesses obtained by the state against private individuals not excesses obtained by private individuals against each other in the court system. At the very least, this is something of a function of non-constitutional decisions made by states about how restitution proceedings are organized. Victim's rights amendments in many states have expressly recognized due process rights for victims in these kinds of situations independent of the rights of the People in these proceedings.

Posted by: ohwilleke | Jun 21, 2012 8:47:53 PM

I agree that Southern Union does not extend to restitution. We have to go back to Justice Thomas' completely accurate statement of what Apprendi is about. It is not about sentencing. See Scalia's concurrence in Ring. Rather, it is about "simply put, what is a crime?" And who convicts people of crimes. I see a distinction between a fact such as the defendant embezzled more than one hundred thousand dollars being an Apprendi fact and a determination of how much money the victim actually lost, considering insurance coverage. Or, I currently represent a def who was convicted of multiple counts of embezzlement of over one hundred thousand dollars, to the tune of three million dollars, but since the offenses were check kiting schemes, the total restitution is only six hundred thousand.
I believe a judge can determine tha actual amount of restitution.

Posted by: bruce cunningham | Jun 22, 2012 7:06:19 AM

Oregon appellate courts have gone out of their way to say that restitution is NOT about making the victim whole, but has a "rehabilitative and deterrent" purpose. The court needed to reach this conclusion in order to deny the defendant a right to a jury trial under the Oregon Constitution's civil jury trial right.

Posted by: Ryan S | Jun 22, 2012 3:24:38 PM

I hear what you are saying Ryan but to my mind that is category error. Restitution is to make the victims(s) whole. Anything else and it's no longer restitution. I'm not surprised that some judges impose a fine and then try to get around it by calling it something else. But we should not buy into their shenanigans. If judges called a fine restitution they lied and that should have been appealed and overturned. In a sane world, anyway.

Maybe what we need is a SCOTUS case to make it plain what restitution actually is so that we don't have courts dreaming up their own definitions. I think this is the preferable solution over extending Apprendi to restitution.

Posted by: Daniel | Jun 22, 2012 4:42:49 PM

At the outset, I would like to preface my comments on this issue by stating: I do not agree with Doug on many, many things (and I do agree with Bill Otis on some of his arguments, also). In this instance, I totally, completely, and 100% (I do not use the term “100% lightly; nor do I use such overused terms as 110% and 200%, at all) with Doug. He is absolutely right, in my humble opinion. I believe that Southern Union is a very fascinating case, to say the least. While it may not be construed as a “landmark,” “watershed” case, it certainly is another nail in the curtailing-the Sixth-Amendment-rights coffin (and the coffin is quite well-sealed, as yet). Needless to say, I was indeed gratified by the US Supreme Court’s ruling.

I have been in missing in action from this blog – however, I have been receiving Doug’s e-mail newsletters and do read them quite religiously – for the last six months, or so, primarily because I have been exceedingly busy with my cases. Apprendi does indeed apply to not only fines, but also restitution. I have been representing a couple of defendants in white-collar cases that are pending in the Third-Circuit courts; so, I can be a little “wordy,” and I ask that the readers forgive ne for the same! (If any of the readers would like to obtain my arguments in these cases, then they are welcome to get them from me.)

Firstly, restitution is a criminal penalty. (I do realize that some circuits – most notably, the Seventh Circuit, where Circuit Judge Posner is a very well-respected, able, and rational jurist) have held that restitution is a civil penalty. (I can list literally hundreds of cases for this proposition, but will only cite a few examples.) See Kelly vs. Robinson, 479 US, 36 (1986) (holding that criminal restitution obligations are not debts dischargeable via bankruptcy proceedings); Pasquantino vs. United States, 544 US, 349 (2005) (stating: “The purpose of awarding restitution in this action is not to collect a foreign tax, but to mete out appropriate criminal punishment for that conduct.”); Libretti vs. United States, 516 US, 29, 39 (1995). See also, United States vs. Carrara, 49 F. 3d, 105, 108 (3rd Circuit; 1998) (stating: “Historically, restitution has occupied a prominent penological position.”); United States vs. Edwards, 162 F. 3d, 87, 89 (3rd Circuit; 1995); United States vs. Leahy, 438 F. 3d, 328, 333 (“In United States vs. Syme, after reviewing several of our earlier cases, we stated that “we consider restitution orders made pursuant to criminal convictions to be criminal penalties.” 276 F. 3d, 131, 159 (3rd Circuit; 2002). Syme accordingly held that “restitution ordered under 18 USC §3663 [the VWPA] constitutes ‘the penalty for a crime’ within the meaning of Apprendi [530 US, 466 (2000)].” Id.; see also, United States vs. Edwards, 162 F. 3d, 87, 91 (3rd Circuit; 1998) (holding that restitution ordered under MVRA constitutes punishment for purpose of Ex Post Facto Clause analysis); United States vs. Sleight, 808 F. 2d, 1012, 1020 (3rd Circuit; 1987) (finding that under Federal Probation Act, restitution “remains inherently a criminal penalty”); United States vs. Palma, 760 F .2d, 475, 479 (3rd Circuit; 1985) (holding that restitution ordered under VWPA is criminal penalty)).

Restitution must be explicitly statutorily-authorized; otherwise, courts do not have authority to impose restitutionary obligations on defendants. See United States vs. Hughey, 495 US, 411 (1990); United States vs. Dorcely, 454 F. 3d, 366 (DC Circuit; 2006). See also, e. g., United States vs. Chalupnik, 514 F. 3d, 748 (8th Circuit; 2008); United States vs. BP Products North America, Inc., 610 F. Supp. 2d, 655 (USDC-SDTX – Houston Division; March 12, 2009); and United States vs. Atlantic States Cast Iron Pipe Company, 612 F. Supp. 2d, 453 (USDC-DNJ; 2009), comparing and discussing the CVRA (“Crime Victims’ Rights Act”), VWPA, and MVRA; United States vs. Akande, 200 F. 3d, 136, 138 (3rd Circuit; 1999); United States vs. DeSalvo, 41 F. 3d, 505, 511, (9th Circuit; 1994); and United States vs. Casamento, 887 F. 2d, 1141, 1177 (2nd Circuit; 1989). Also, the restitution amount cannot exceed actual loss. See United States vs. Diaz, 245 F. 3d, 294, 312 (3rd Circuit; 2001); United States vs. Leahy, 438 F. 3d, 328, 337 (3rd Circuit; 2006) (en banc). . See also, United States vs. Cefaratti, 221 F. 3d, 502, 512 (3rd Circuit, 2000); United States vs. Knobloch, 131 F. 3d, 366 (3rd Circuit; 1997); United States vs. Thompson, 113 F. 3d, 13, 25 (2nd Circuit; 1997); United States vs. Gottlieb, 140 F. 3d, 865 (10th Circuit, 1998); and Hughey vs. United States, 495 US, 411 (1990). In addition, restitution is limited to the offense of conviction.

In criminal proceedings, however, crime victims, per se, do not really have standing to be “heard,” unless a statute expressly provides so; only the government has the authority to prosecute those cases. See, e. g., United States vs. BP Products North America, Inc., 610 F. Supp. 2d, 655 (USDC-SDTX – Houston Division; March 12, 2009). Two of the most common restitutionary statutes – 18 USC §3663 (VWPA – “permissive”) and 18 USC §3663A (MVRA – “mandatory”) are not interchangeable; nor are they fungible, or otherwise substitutable for each other. (I have excluded other restitutionary statutes in this instance.) See e. g., 18 USC §3663(a)(1) (applying to offenses “other than offense described in [18 USC§]3663A”); and 18 USC §3663A(c)(1)(A) (delimiting the ambit of this section to “crime of violence” – as defined by 18 USC §16; “offense against property under this title,” or Controlled Substances Act – 21 USC §856(a), including any offense committed by fraud or deceit”; or 18 USC §1365 (related to consumer-product tampering)). (Most defense counsel simply miss this distinction, and their clients end up paying dearly). (There are civil restitution statutes, in addition to criminal restitution statutes.)

Southern Union, Slip Opinion, at 4, clearly states: “Apprendi’s “core concern” – to reserve to the jury “the determination of facts that warrant punishment for a specific statutory offense,” – applies whether the sentence is a criminal fine or imprisonment or death. Ice, 555 US, at 170.” One should note that this refers to “punishment,” and not the determination of innocence, or guilt (i. e., conviction). Some have argued – fecklessly, nonetheless – that restitution statutes do not have a “maximum,” or a “cap.” The existence of a maximum penalty, or a ceiling, of any kind has absolutely no bearing on the Sixth-Amendment right to the jury-determination of the facts necessary for the imposition of penalties (i. e., punishments, not just fining one guilty). Lest we forget, Southern Union was convicted of an offense for which there was no “maximum fine”; but just that for each day of violation, the fine is set at $50,000. See 42 USC §6928(d)(2)(A).

Southern Union, Slip Opinion, at 5, further states: “And the amount of a fine, like the maximum term of imprisonment or eligibility for the death penalty, is often calculated by reference to particular facts. Sometimes, as here, the fact is the duration of a statutory violation; under other statutes it is the amount of the defendant’s gain or the victim’s loss, or some other factor. In all such cases, requiring juries to find beyond a reasonable doubt facts that determine the fine’s maximum amount is necessary to implement Apprendi’s “animating principle”: the “preservation of the jury’s historic role as a bulwark between the State and the accused at the trial for an alleged offense.” Ice, 555 US, at 168. In stating Apprendi’s rule, we have never distinguished one form of punishment from another. Instead, our decisions broadly prohibit judicial factfinding that increases maximum criminal “sentence[s],” “penalties,” or “punishment[s]” – terms that each undeniably embrace fines. E.g., Blakely, 542 US, at 304; Apprendi, 530 US, at 490; Ring, 536 US, at 589.”

In Southern Union, the US Supreme Court has repeatedly reiterated (citing to other legal authorities) that the loss amounts must be pleaded in the indictment/information and proved to the jury (the “factfinder”) beyond a reasonable doubt. See Southern Union, Slip Opinion, at 9-11 (stating, inter alia: “In any event, the salient question if what role the jury played in prosecutions for offenses that did peg the amount of fine to the determination of specified facts – often, the value of damaged or stolen property.”). Hence, it is clear that restitution must be directly tethered to the actual loss, which should have been directly and proximately caused – i. e., this “injury” requires “proximate, or legal,” causation; not just the “but-for, or factual” causation – by the offense conduct underlying the offense of conviction. Hence, the follow-up question becomes: Who determines the loss amount? For the restitution amount to be fixed, the loss amount must be determined by the jury, as the factfinder. While the US Supreme Court expressly rested its opinion on jury-trial right of the Sixth Amendment to the US Federal Constitution, there is another – more dispositive, in my opinion – fundamental right at work, viz., the Sixth Amendment’s right to fair notice. In this regard, I have come across white-collar cases (including the ones that I currently represent), wherein the US Attorneys’ Offices (“USAO”) do not even bother to plead the dollar amounts of alleged conduct in the charging instruments; to make matters worse, in some cases, the USAOs do not even provide notice of their intent to seek restitution. This is the same type of nonchalant attitude (not to mention prosecutorial hubris), inter alia, that led to the promulgation (as part of the Organized Crime Control Act of 1970 – Title IX, §1963 – and the Comprehensive Drug Abuse Prevention and Control Act of 1970) FRCrP Rule 7(c)(2) in 1972; and a separate FRCrP Rule 32.2, subsequently in 2000). Now, all forfeiture actions require notice and parallel (and ancillary) proceedings in all criminal (and civil) cases, in keeping with commonlaw requirements. (Jury-determination of the nexus between the property sought to be forfeited and the offense of conviction is also available, as of right, in criminal context!). Furthermore, forfeiture proceedings are deemed “post-conviction,” i. e., part of the sentencing of the defendant. Hence, I would not be surprised if FRCrP rules were modified, in the near future, to accommodate the notices of intent to seek fine and restitution.

What I do not understand is: Why does a USAO find it so difficult to allege (plead) the facts (such as dollar amounts and quantities) and prove to the factfinder (jury) beyond a reasonable doubt that it simply ignores (willfully, I might add) to consider the “big picture”? Why is it difficult for the government to provide notice to defendants of restitutionary statutes and the intent to seek restitution?

On another note, the US Supreme Court has recently denied a petition for certiorari on the issue of “whether restitution is part of a criminal sentence, such that waiver of the right to appeal any sentence bars a defendant from appealing the amount of restitution imposed pursuant to 18 USC §2559; and, if so, (2) under what circumstances does the waiver of the right to appeal one’s sentence preclude a court of appeals from reviewing the legality of an award.” See Staples vs. United States, US Supreme Court Docket #10-1132. One may also want check out Dolan vs. United States, 560 US, ___; 177 L. Ed. 2d, 108; 130 S. Ct., 2533 (holding “that a sentencing court that misses the 90-day deadline nonetheless retains the power to order restitution – at least where, as here, the sentencing court made clear prior to the deadline’s expiration that it would order restitution, leaving open (for more than 90 days) only the amount.”). Even in Dolan, the US Supreme Court has clearly left open other factual scenarios, e. g., where a defendant objected to a continuance of the restitution hearing.

At bottom, I feel that restitution issue is heading to the US Supreme Court for a conclusive resolution, and I predict that the Apprendi/Blakely holding applies to any penalty that increases the penalty.

Posted by: John Marshall | Jun 23, 2012 3:29:36 AM

The last sentence should read as follows:

At bottom, I feel that the restitution issue is heading to the US Supreme Court for a conclusive resolution, and I predict that the Apprendi/Blakely holding applies to any fact that increases the penalty.

Sorry for the gaffe!

Posted by: John Marshall | Jun 23, 2012 3:58:23 AM

I beg to differ with you. While I respect your position, I am afraid that you may be doing a great disservice to your clients. Please see my post above on "restitution."

Posted by: John Marshall | Jun 23, 2012 4:20:24 AM

In the U.S. the “criminal justice system is not operated primarily for the benefit of victims, but for the benefit of society as a whole.” Kelly v. Robinson, 479 U. S. 36, 52 (1986). In Kelly v. Robinson the Supreme Court said that restitution:

"is concerned not only with punishing the offender, but also with rehabilitating him. Although restitution does resemble a judgment `for the benefit of' the victim, the context in which it is imposed undermines that conclusion. The victim has no control over the amount of restitution awarded or over the decision to award restitution. Moreover, the decision to impose restitution generally does not turn on the victim’s injury, but on the penal goals of the State and the situation of the defendant. Unlike an obligation which arises out of a contractual, statutory or common law duty, [with restitution] the obligation is rooted in the traditional responsibility of a state to protect its citizens by enforcing its criminal statutes and to rehabilitate an offender by imposing a criminal sanction intended for that purpose."

"Because criminal proceedings focus on the State’s interests in rehabilitation and punishment, rather than the victim’s desire for compensation, we conclude that restitution orders imposed in such proceedings operate `for the benefit of' the State. Similarly, they are not assessed `for … compensation' of the victim. The sentence following a criminal conviction necessarily considers the penal and rehabilitative interests of the State."

Id; see, http://www.timpolishan.com/restitution-rehabilitates/

Posted by: Defense Attorney Timothy P. Polishan | Jun 26, 2012 10:20:41 AM


Thanks for the additional quotations!

Posted by: John Marshall | Jun 27, 2012 11:17:40 PM

I have a case where a client pled guilty to one count of a DUI a felony. The victim is seeking restitution for medical losses and wage losses caused as a result of the accident totaling 28000 thousand dollars. I subpoenaed insurance records dealing with the civil settlement related to the incident. They revealed that the prosecutor is seeking restitution for losses already paid out through the insurance settlement the victim had with the client. Nevertheless, the prosecutor is seeking restitution arguing that it is necessary for rehabilitation and deterrent purposes. I am going to make apprendi arguments. I am wondering what the panel here thinks.

Posted by: Mo | Jul 9, 2012 5:04:06 PM

My take is a bit different. Does it really matter what a legislature declares the purpose of restitution to be (make victim whole, rehabilitation, deterrence/punishment). Isn't it more important to ask what the effect of such an order is on a defendant? I have a client convicted of an infraction and claimed restitution is over $500,000. My client had no right to an attorney at his infraction hearing and no right to a jury trial. Now, after his conviction and sentence, probation is recommending over half a million dollar in restitution. Does that seem fair? My client does not think so; to him, this amount is extremely punitive; he'd rather do six months in jail. The point is we must remember that in Apprendi the court stressed "form over substance." For example, simply calling something a sentence "enhancement"--as opposed to an element of an offense--means nothing in terms of the practical effect on the defendant. In Scalia's dissent in Oregon v. Ice, he reiterated not elevating formalistic notions over substance. Criminal restitution has the following punitive consequences: it is a condition of probation that, if violated, can lead to prison; it cannot be discharged in bankruptcy; it can be set even after termination of probation; defendants in California remain on probation in revoked status for decades (sometimes for the balance of their lives) simply so the court can retain jurisdiction to monitor monthly restitution payments (we call these indefinite probation revocation calendars). Such clients have waived their 4th amendment rights and 1st amendment right to travel while they remain probation in revoked status. Is that not punitive enough?

Posted by: Andy Gutierrez | Oct 11, 2012 1:42:11 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