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National Crime Victim Law Institute

New and Noteworthy

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  • United States v. Kaplan, — F.3d —, Nos. 15-30213, 2016 WL 5859856 (9th Cir. Oct. 7, 2016)

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    Defendants pled guilty to several charges stemming from an explosion caused by the manufacture of hash oil, a controlled substance, in their apartment.  The explosion destroyed a portion of the apartment complex and injured five victims, killing another.  The district court ordered defendants to pay $2,771,929 in restitution for destroyed property that included clothes, furniture, and appliances.  Defendants appealed the restitution award arguing that the district court erred in calculating the value of the lost property using the property’s replacement value rather than fair market value; the difference between the two measurements was $40,000.  The appellate court, looking to the Mandatory Victim Restitution Act (MVRA), 18 U.S.C. §3663A, explained that although the statute requires a court to order restitution in the full amount of the destroyed property’s value, it does not specify how a court is to calculate the value, and that how to calculate value for destroyed property under the MVRA was an issue of first impression for the Ninth Circuit.  The court reasoned that the statute’s remedial purpose and the legislature’s desire that victims be restored to the position they occupied before the crime necessitated giving district courts flexibility in how they calculate value.  The court then looked to other federal circuits that have addressed the issue and found cases that upheld replacement cost value and none prohibiting it.  Based on these considerations, the court concluded that fair market value is generally the best measure for calculating restitution, however, replacement cost valuation is appropriate where the fair market value is either difficult to determine or is an inadequate or inferior measure of the property’s value.   Applying this holding to the case before it, the court noted that the district court found that various pieces of the destroyed property were personal types of items and that awarding fair market value—which was the equivalent of purchasing someone else’s used items—would not make the victims whole.   For these reasons, the appellate court held that the district court did not abuse its discretion in awarding the higher amount based on replacement value and upheld the restitution award.

  • Bosse v. Oklahoma, — S. Ct. —, No. 15-9173, 2016 WL 5888333 (Oct. 11, 2016) (per curiam)

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    Defendant in the underlying criminal proceeding was convicted of three counts of first degree murder, and the state sought the death penalty.  Over defendant’s objection, the state asked three of the victims’ relatives to recommend a sentence to the jury.  All three recommended death, and the jury agreed.  Defendant appealed, and the Oklahoma Court of Criminal Appeals affirmed the sentence, finding “no error” and holding that the Supreme Court’s decision in Payne v. Tennessee, 501 U.S. 808 (1991), implicitly overruled the portion of its decision in Booth v. Maryland, 482 U.S. 496 (1987), that prohibited the admission of victims’ family members’ characterizations and opinions about the crime, the defendant, and the appropriate punishment.    The Supreme Court granted certiorari. The Court reiterated that its decision in Payne did not affect Booth’s holding regarding opinions about the crime, the defendant, and the appropriate punishment and affirmed that Supreme Court decisions “remain binding precedent until [the Supreme Court] see[s] fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality.”  The Court concluded that because the Oklahoma Court of Criminal Appeals remains bound by Booth’s prohibition, it erred in concluding otherwise.  The judgment of the Oklahoma Court of Criminal Appeals was vacated and the case remanded for further proceedings.