Restitution and Blakely

This wikilog article is a draft, it was not published yet.

by: Ryan • April 23, 2014 • no comments

I want to make a quick observation that I hope to follow up on when I have more time. I had previously referred y'all to a speculative post from Professor Berman at Sentencing Law and Policy blog that the amount of restitution might be an Apprendi/Blakely issue. His suggestion was prompted by the Southern Union opinion.

Apprendi and Blakely obviously implicate the federal constitution. A similar argument was made under Oregon's constitution which was rejected by the Oregon Supreme Court. At some point, I hope to track down any briefs written on the federal issue.

I'm all the more eager to do so today, after a quick skim of the child porn restitution decision from SCOTUS. Here's part of the majority opinion, authored by Justice Kennedy:

Thus, despite the differences between restitution and a traditional fine, restitution still implicates “the prosecutorial powers of government,” Browning-Ferris supra, at 275. The primary goal of restitution is remedial or compensatory, cf. Bajakajian, supra, at 329, but it also serves punitive purposes, see Pasquantino v. United States, 544 U. S. 349, 365 (2005) (“The purpose of awarding restitution” under 18 U. S. C. §3663A “is . . . to mete out appropriate criminal punishment”); Kelly , 479 U. S., at 49, n. 10. That may be “sufficient to bring [it] within the purview of the Excessive Fines Clause,” Bajakajian, supra, at 329, n. 4. And there is a real question whether holding a single possessor liable for millions of dollars in losses collectively caused by thousands of independent actors might be excessive and disproportionate in these circumstances. These concerns offer further reason not to interpret the statute the way the victim suggests. [Emphasis added.]

Does that language make it more likely that restitution -- which requires findings of fact -- is a jury question? Now frankly, I wouldn't necessarily want a jury on a child porn case, but there are many other cases where a jury might be more skeptical of the victim's claims than the court.