By Nicole Banister | Due Process Institute | Policy Counsel
On Monday January 6, the Supreme Court denied a Petition for Writ of Certiorari in Hester v. United States. The case sought to extend the Court’s reasoning in Apprendi v. New Jersey to criminal restitution. This would require prosecutors to prove to a jury, beyond a reasonable doubt, each fact necessary for an order of criminal restitution. Courts are currently bypassing the Sixth Amendment right to a jury trial and denying defendants due process by permitting judges to determine criminal restitution. While the Supreme Court may have declined to take up the issue this term, Justice Gorsuch and Justice Sotomayor are continuing to unite to defend the rights of the criminally accused.
In Apprendi, the Supreme Court held that the Due Process Clause requires that any fact that increases the penalty for a crime beyond the statutory maximum be presented to a jury and proven beyond a reasonable doubt. In his opinion, Justice Stevens admonished the New Jersey criminal procedure as “an unacceptable departure from the jury tradition that is an indispensable part of our criminal justice system.” The reasoning in Apprendi was later applied to criminal fines in Southern Union Company v. United States, which held that any fact increasing a maximum fine must be proven to a jury beyond a reasonable doubt.
In Hester, Marco Luis and Joshua Hester pled guilty to charges related to bank fraud. After accepting the guilty pleas, the court then considered whether to impose criminal restitution. The judge alone determined the victim’s losses–in this case $329,767 to Citibank–and ordered the defendants to pay. Luis and Hester appealed the district court’s decision on the grounds that “the district court could not, consistent with the Fifth and Sixth Amendments, impose restitution because there were no allegations in the indictment with respect to restitution.” Extending the Apprendi doctrine, Luis and Hester argued that the restitution order constituted an increase in the sentence and that the district court could not make that order based solely on its own fact findings. The Ninth Circuit ultimately upheld the district court’s decision to impose criminal restitution on Luis and Hester.
During the Ninth Circuit Appeal, the government argued that criminal restitution should not be considered equal to a criminal fine. They claimed that there is no statutory maximum for restitution therefore a judge cannot exceed the maximum, thus triggering the need for a jury determination. In his dissent from the Court’s denial of defendants’ petition of certiorari, Justice Gorsuch, joined by Justice Sotomayor, addresses this argument stating that “in a sense, 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.” Criminal restitution differs from a fine precisely because the amount imposed is based on the loss to the victim rather than punitive or deterrent punishment. The government also argued that criminal restitution is separate from punishment altogether and therefore outside of Sixth Amendment protection. However, failure or inability to pay restitution can ultimately result in imprisonment, unlike failure to pay a civil debt. By imposing restitution as part of a defendant’s criminal conviction, the judge is expressly placing it under the protection of the Sixth Amendment. Furthermore, if restitution was purely a civil remedy, it would instead need to consider the right to a jury trial in civil cases under the 7th amendment.
While you might assume that Justice Alito would be more likely than Justice Sotomayor to join Justice Gorsuch in his dissenting views, Alito and Gorsuch sit on near opposite sides of this issue. Alito’s concurrence with the Court’s denial of certiorari purports to espouse a “fidelity to original meaning” when he calls into question not only the extension of Sixth Amendment protection to criminal restitution but even the Apprendi decision itself, calling it “suspect precedent.” In his dissent, Gorsuch directly contrasts Alito’s proposition that his perspective on this case aligns with an originalist interpretation, calling the government’s arguments in Hester “difficult to reconcile with the Constitution’s original meaning.” He supports this view with a discussion on the history of criminal restitution in common law dating back to the time of Henry VIII. (The English statute at that time entitled larceny victims to restitution for only the goods found stolen by a jury.) Finding the Ninth Circuit decision difficult to square with his originalist perspective on Sixth Amendment protection, Gorsuch makes an unlikely ally in Justice Sotomayor.
Known for her powerful dissents in criminal cases, Justice Sotomayor has become a champion for the rights of the accused and for checks on the power of the government. She has made arguments against stop-and-frisk policing and excessive use of force, even citing influential books on the experiences of people of color with police such as Michelle Alexander’s “The New Jim Crow,” Ta-Nehisi Coates’s “Between the World and Me,” and W.E.B. Du Bois’s “the Souls of Black Folk.” As the New York Times described her, “Justice Sotomayor is more apt to see encounters with the police through the eyes of the powerless, as tinged with humiliation, danger and worse.” While it may be expected that Sotomayor will dissent in cases of police abuse, particularly against people of color, it should be noted that she does not limit her criticism of law enforcement overreach to facially discriminatory practices. In Hester, she continues her fight for due process rights by joining Gorsuch in standing up for the right to a jury trial for two mortgage brokers.
Justice Gorsuch, while newer to the Court, has already demonstrated his ability to stand on his principles of liberty when deciding cases of due process. For example, in siding with the more liberal leaning Justices in Sessions v. Dimaya, he agreed that the Immigration and Nationality Act’s “crime of violence” provision was unconstitutionally vague and violated the Due Process Clause of the Fifth Amendment.
While Sixth Amendment protections in criminal restitution will not be argued before the Supreme Court this session, we are cautiously optimistic that the union of Justices Gorsuch and Sotomayor on criminal justice issues will enable the Court to better protect the due process rights of the criminally accused in the future.