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May 29, 2018

SCOTUS limits reach of Mandatory Victims Restitution Act in Lagos ... and talks about Fourth Amendment

The US Supreme Court handed down two opinions and a dismissal this morning, all from the criminal side of its docket.  The one sentencing decision came in Lagos v. United States, No. 16-1519 (S. Ct. May 29, 2018) (available here).  Here is hope the unanimous opinion by Justice Breyer gets started:

The Mandatory Victims Restitution Act of 1996 requires defendants convicted of a listed range of offenses to

“reimburse the victim for lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.” 18 U.S.C. §3663A(b)(4) (emphasis added).

We must decide whether the words “investigation” and “proceedings” are limited to government investigations and criminal proceedings, or whether they include private investigations and civil proceedings.  In our view, they are limited to government investigations and criminal proceedings.

Got that? The short Lagos opinion goes on to provide a mini-primer on federal restitution statutes, but both the issue and the opinion here ensures this ruling will not be too long remembered.

Also not to be too long remembered is a DIG (dismissed as improvidently granted) from SCOTUS today in City of Hays, Kansas v. VogtNo. 16-1495.  The only SCOTUS decision today likely to get any real attention is a Fourth Amendment ruling in Collins v. Virginia, No. 16-1027 (S. Ct. May 29, 2018) (available here).  Justice Sotomayor starts the opinion for the Court off succintly: "This case presents the question whether the automobile exception to the Fourth Amendment permits a police officer, uninvited and without a warrant, to enter the curtilage of a home in order to search a vehicle parked therein. It does not."  Justice Alito dissents alone, starting this way: "The Fourth Amendment prohibits 'unreasonable' searches. What the police did in this case was entirely reasonable. The Court’s decision is not."

The merits aside, the Collins decision will really garner attention because of a lengthy concurrence by Justice Thomas.  Writing alone, he urges the Court to reconsider the reach of the exclusionary rule.  Here is how his opinion starts and ends:

I join the Court’s opinion because it correctly resolves the Fourth Amendment question in this case.  Notably, the only reason that Collins asked us to review this question is because, if he can prove a violation of the Fourth Amendment, our precedents require the Virginia courts to apply the exclusionary rule and potentially suppress the incriminating evidence against him. I write separately because I have serious doubts about this Court’s authority to impose that rule on the States.  The assumption that state courts must apply the federal exclusionary rule is legally dubious, and many jurists have complained that it encourages “distort[ions]” in substantive Fourth Amendment law, Rakas v. Illinois, 439 U.S. 128, 157 (1978) (White, J., dissenting)....

In sum, I am skeptical of this Court’s authority to impose the exclusionary rule on the States.  We have not yet revisited that question in light of our modern precedents, which reject Mapp’s essential premise that the exclusionary rule is required by the Constitution.  We should do so.

May 29, 2018 at 10:35 AM | Permalink


Justice Thomas quotes Akhil Amar, whose views on various subjects he might not be as likely to cite, but do not see a reference to Fourth Amendment expert Orin Kerr. I recall reading a history/article of his that is at least more agnostic on the matter. Perhaps, he will write something later at Reason/Volokh Conspiracy.

Posted by: Joe | May 29, 2018 10:54:40 AM

I found this statement in Breyer's opinion to be an interesting inclusion:

"And one begins to doubt whether Congress intended, in making this restitution mandatory, to require courts to resolve these potentially time-consuming controversies as part of criminal sentencing—particularly once one realizes that few victims are likely to benefit because more than 90% of criminal restitution is never collected. See GAO, Federal Criminal Restitution: Most Debt Is Outstanding and Oversight of Collections Could Be Improved 25 (GAO–18–203, 2018) (explaining that the Justice Department considers 91% of outstanding criminal restitution to be “uncollectible”)."

Seems like a bit of a dig at the government. I know from personal experience that getting court ordered restitution doesn't actually mean you get anything, but I wasn't aware the numbers were so high on the federal level. If Congress were really that concerned with compensating victims it could pass legislation that requires restitution in certain situations be paid by the government, and then the offender is on the hook to the government for the amount. I would think the government has better resources to secure collection than a victim (maybe not GE). But since that would probably be expensive legislation, it's more likely the restitution charade continues.

Posted by: Anonuser879 | May 29, 2018 5:34:45 PM

Joe, I don't think you can point directly to the exclusionary rule in historic practice at the time of adoption of the Constitution. But you can point to doctrines that did exist at the time to provide for a firm basis for the rule existing. The big example I always point to is the nullity doctrine. Any action done in violation of the Constitution is void. This doctrine, of course, would be very uncomfortable for the modern Court because it would also removed good faith qualified immunity. There's a case where an individual killed someone in defense of a Supreme Court Justice. All parties agreed that, even though he was acting on the orders of the President of the United States, if there was no lawful authority, he would not be entitled to any kind of immunity.

Anyway, the doctrine can be extended pretty clearly to same logic in Weeks. If the police had no lawful authority to search property, they had no lawful authority to possess or use the evidence found during that search. That's the fundamental premise of the exclusionary rule as it was initially conceived. Unfortunately, as time went on, the courts have changed the rationale to instead say the purpose is to deter the police from illegal conduct and that it's an entirely prophylactic rule not constitutionally required. This change to deterrence as the purpose only really serves to undermine the exclusionary rule and to downplay the connections to the common law.

Posted by: Erik M | May 30, 2018 2:45:47 PM

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