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National Crime Victim Law Institute

Hester v. United States, 586 U.S. ---, No. 17-9082, 2019 WL 113622 (Jan. 7, 2019)

January 10, 2019

Defendants, convicted after guilty pleas to conspiracy to launder money and other offenses, appealed the United States Court of Appeals for the Ninth Circuit’s decision affirming the district court’s restitution order. Defendants argued, inter alia, that the restitution order violated United States Supreme Court precedent in Apprendi v. New Jersey and Southern Union Co. v. United States because the restitution allegations were neither charged nor proven to the jury beyond a reasonable doubt. The Supreme Court denied defendants’ petition for a writ of certiorari. In a concurring opinion, Justice Alito addressed defendant’s argument that under Apprendi and its progeny, the Sixth Amendment requires the jury to find the facts that support a restitution order. Justice Alito stated that the Supreme Court precedent is premised upon “a questionable interpretation of the original meaning of the Sixth Amendment” and determined that “fidelity to original meaning counsels against further extension of these suspect precedents.” Justices Gorsuch and Sotomayer wrote a dissenting opinion. First, the dissenting Justices observed the “increasing role” restitution plays in the federal criminal sentencing process since the passage of the Victim and Witness Protection Act of 1982 and the Mandatory Victims Restitution Act of 1996; and they noted the negative consequences, including the suspension of voting rights and reincarceration, that offenders may face for failure to pay restitution. Next, the dissenting Justices examined Supreme Court precedent requiring a jury to find “any fact that triggers an increase in a defendant’s ‘statutory maximum’ sentence.” The Justices explained that the term “statutory maximum” used in case law refers to “the harshest sentence the law allows a court to impose based on facts a jury has found or the defendant has admitted”; the “statutory maximum for restitution is usually zero, because a court can’t award any restitution without finding additional facts about the victim’s loss”; and “it would seem to follow that a jury must [also] find any facts necessary to support a (nonzero) restitution order.” The dissenting Justices rejected the government’s argument that the Sixth Amendment did not apply to restitution orders because restitution is a civil remedy rather than a criminal penalty. The dissenting Justices observed that the Sixth Amendment’s right to a jury trial “expressly applies ‘[i]n all criminal prosecutions,’” restitution is imposed as part of a criminal prosecution, and both federal statutes and case law “describe restitution as a ‘penalty’ imposed on the defendant as part of his criminal sentence.” The dissenting Justices stated that if restitution is really outside the scope of “criminal prosecutions,” then they “would have to consider the Seventh Amendment and its independent protection of the right to a jury trial in civil cases.” Finally, the dissenting Justices cited examples of common law prosecution of stolen property where restitution was ordered only after the jury found the value of the stolen property, and observed that the purpose of the Sixth Amendment was to “preserv[e] the ‘historical role of the jury at common law.’” For these reasons, Justices Gorsuch and Sotomayer would grant the petition for review.