Free Minds & Free Markets

Gorsuch and Sotomayor Join Forces in Defense of Sixth Amendment Rights

It's not the first time the two justices have teamed up on a criminal justice case.

JIM YOUNG/REUTERS/NewscomJIM YOUNG/REUTERS/NewscomSupreme Court Justices Neil Gorsuch and Sonia Sotomayor have once again joined forces, this time dissenting from a decision today not to hear a case related to criminal justice.

The case involves two men, Joshua John Hester and his former realtor, Marco Luis. Back in 2012, Hester pleaded guilty to eight felony charges stemming from a marijuana distribution operation he was running in California. Luis, meanwhile, was the realtor for two of Hester's properties. Both men admitted to conspiracy to launder money, and they were ordered by a district court to pay $329,767 in restitution to CitiGroup and $615,935 to JP Morgan Chase.

Hester and Luis appealed to the U.S. Court of Appeals for the Ninth Circuit, which remanded the JP Morgan restitition order to the district court but ruled they had to pay the $329,767 to CitiGroup. The district court then said all the money in Hester's inmate trust account, except for $500, needed to be used as restitution for CitiGroup as a condition of his and Luis' supervised release. They appealed again, though unsuccessfully, to the Ninth Circuit, "challenging the district court's ability to set a restitution payment schedule and to order the Bureau of Prisons to turn over funds in Hester's Inmate Trust Account," according to the Ninth Circuit's January 2018 ruling.

Hester and Luis appealed once more, this time asking the Supreme Court to hear their case. They argued that under the Sixth Amendment, which guarantees the right to a trial by jury, they can demand that a jury, not a judge, determine the facts of the case supporting the restitution order. But the Court today declined to hear their case.

Their argument "depends upon the proposition that the Sixth Amendment requires a jury to find the facts on which a sentence of imprisonment is based," wrote Justice Samuel Alito. This "proposition is supported by decisions of this Court," he added, "but it represents a questionable interpretation of the original meaning of the Sixth Amendment.

"Unless the Court is willing to reconsider that interpretation, fidelity to original meaning counsels against further extension of these suspect precedents," Alito concluded.

At least two justices disagreed. Arguing that "this case is worthy of our review," Gorsuch, who was joined by Sotomayor, penned a dissent. He noted that in a criminal trial where the defendant opts for a jury, the prosecutor must make a case to the jury regarding potential time of incarceration. The same goes for fines. "If a court orders you to pay a fine to the government, a jury must also find all the facts necessary to justify that punishment too," Gorsuch wrote.

He went on to point out that "restitution plays an increasing role in federal criminal sentencing today," and that "failure or inability to pay restitution can result in suspension of the right to vote, continued court supervision, or even reincarceration."

With that in mind, Gorsuch took note of the flaws in the government's two main arguments. For one thing, he claimed the government misinterprets Supreme Court precedent. "This Court has held that the Sixth Amendment requires a jury to find any fact that triggers an increase in a defendant's 'statutory maximum' sentence," Gorsuch wrote, referring to "the harshest sentence the law allows a court to impose based on facts a jury has found or the defendant has admitted." Contrary to the government's reasoning, this applies to restitution orders as well, he said, even though they are dependent on the victim's loss.

"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," Gorsuch wrote. "And just as a jury must find any facts necessary to authorize a steeper prison sentence or fine, it would seem to follow that a jury must find any facts necessary to support a (nonzero) restitution order."

Gorsuch also addressed the government's backup argument that restitution is a civil penalty rather than a criminal one. "[T]he government concedes that 'restitution is imposed as part of a defendant's criminal conviction,'" he pointed out. Plus, federal laws "describe restitution as a 'penalty' imposed on the defendant as part of his criminal sentence."

While Gorsuch and Sotomayor are generally thought to approach Court matters from opposite viewpoints—Gorsuch as a conservative, Sotomayor as a liberal—they've shown on more than one occasion that this isn't always true, particularly when it comes to criminal justice. As Reason's Damon Root reported in October, both justices faulted Congress for allowing the attorney general to act like a legislator. And in November, Gorsuch and Sotomayor faulted their Court colleagues for declining to hear a case regarding a woman's Sixth Amendment right to cross-examine her accuser.

These instances, as well as Justice Brett Kavanaugh's decision last month to side with his liberal colleagues in declining to hear a pair of Planned Parenthood defunding cases, illustrate an important point: It's impossible to classify Supreme Court Justices with purely partisan labels.

Photo Credit: JIM YOUNG/REUTERS/Newscom

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  • Mr. JD||

    The fact that the law is sometimes on the side of a partisan, activist judge does not mean that the judge isn't a partisan activist.

    In this particular case, there are no obvious partisan implications. That doesn't mean that Sotomayor isn't an activist judge; just that her activism wasn't "activated" here.

  • a ab abc abcd abcde abcdef ahf||

    Duh. That's what TFA says.

  • Agammamon||

    Doesn't mean she is either.

    Sotomayer hasn't been particularly 'activist' - unless you consider pretty consistently on the side of individual liberty against government privilege to be activist. She's been a surprisingly good pick and people should be able to accept the just like Trump found Gorsuch - which may come back to bite him in the arse - Obama made a good pick in Sotomayer.

  • sharmota4zeb||

    Yep, Sotomayer is alright.

  • HeteroPatriarch||

    I've actually been pleasantly surprised with Sotomayor. Especially in comparison with kagan.

  • Juice||

    Alito and Kagan are currently neck and neck for worst justice but I'll bet once Kavanaugh gets up and running he'll take the lead.

  • Quo Usque Tandem||


  • khm001||

    The worst judge on the SCOTUS is RBG.

  • Uncle Jay||

    America would be better off without a constitution.
    Just think if we had a socialist dictator disseminating his wisdom, then we wouldn't need supreme court justices, lawyers, judges and a host of other legal experts who parasite our fears..
    We would just blindly follow the prudent diktats of dear leader, and then all would be well.
    This idea works well in North Korea, Cuba and Venezuela, and you can bet your copy of The Federalist Papers it would work here too.

  • BigT||

    Not even a shadow of OBL.

  • HeteroPatriarch||

    You work for the Times?

  • sharmota4zeb||

    Dude, you should check yourself into a psych ward. Seriously, that's how American psych wards are run. You would love it in there.

  • khm001||

    Someone's sarcasm meter is in need of serious re-calibration.

  • Hugh Akston||

    Joshua John Hester of San Diego pleaded guilty January 3, 2012, to eight felony charges, including conspiracy to distribute over 1,000 kilograms of marijuana, conspiracy to maintain drug-related premises, conspiracy to launder money, and criminal forfeiture.

    Literally none of these should be crimes.

  • Pro Libertate||

    Wrong, sir, wrong! It should be a crime to use the metric system.

  • Diane Reynolds (Paul.)||

    How do you think they knew he was dealing drugs... an undercover asked him how many pounds in a kilo and *BAM* he had an answer.

  • sharmota4zeb||

    In the metric system, every man weighs less and looks more impressive.

  • I am the 0.000000013%||

    The women swoon when I tell them my measurement in millimeters

  • Deconstructed Potato||

    'Maintain a drug-related premises' sounds very responsible. Carry on.

  • Deconstructed Potato||

    If you squint, Sotomayor looks Chinese, and incidentally so do you. Stop making fun, round eye!

  • SchillMcGuffin||

    If you squint, then you become what you beheld.

  • I am the 0.000000013%||

    I always knew I was Clint

  • Bubba Jones||

    They pled guilty, and then the court slapped them with a restitution order that wasn't in the plea bargain?

    That seems like the most alarming feature of this case.

    Otherwise, if they pled guilty to stealing money, it doesn't seem problematic to me that they be ordered to repay it. But the summary documents don't explain how and why JP Morgan was actually harmed.

  • Eddy||

    Duh, J. P. Morgan is supposed to get its cut of every drug transaction in this country. Do you even conspiracy theory, bro?

    (Strictly a joke)

  • Brett Bellmore||

    Just off the top of my head, I'd guess that JP Morgan was harmed when the government seized the property that was security for a loan.

  • Hank Phillips||

    Neighborhood effects from looting by law include flight of cash from banks and brokerages. The credit structure collapses, money supply shrinks, liquidity crisis sets in and Morgan customers are then robbed for the bailouts begged for every time asset-forfeiture looting is resorted to. Remember the Trevor cartoons in Reason of olde? Remember Milton Friedman's explanation of how those accounts increase the money supply? Bottom line? The looters still keep and snort the boodle and pelf, and hire 400-page reports saying it was "overspeculation."

  • JFree||

    No surprise two of the justices whose federal court experience is outside the DC appeals circuit saw the bigger issue worthy of SC looking at it. Those are precisely the circuits where cases involving normal people happen.

    Too bad the DC appeals circuit is now the default career path for SC justices.

  • ||

    I'm just here to say Gorsuch was supposed to be part of Trump's nefarious plot to create a Kingdom of Evil.

    Wha happened?

  • Eddy||

    He's a sleeper agent. He'll be called into action at the proper time.

  • Social Justice is neither||

    Such terrible reporting, but reading through the links it's as much the fault of the source material as anything else.

    Unanswered, what is the restitution for? Reimbursement for the legal and audit fees incurred by 3rd parties during the course of the investigation maybe? that's all I can think of that could be reasonable, and in that case shouldn't the admissions to the crimes be enough to make them liable?

    Also, in the DOJ case it says Luis is ordered to pay the listed restitution but it's coming out of Hester's account? Maybe that's where the money is, but if that's the case shouldn't they have both been listed in those proceedings? I can see Hester having an issue if he's not involved in the proceedings but is forced to pay.

  • Brett Bellmore||

    The government instituted forfeiture proceedings against property they'd bought to grow pot on. The restitution is, I gather, to pay off the loans used to purchase the forfeited property.

  • Crikey||

    "These instances, as well as Justice Brett Kavanaugh's decision last month to side with his liberal colleagues in declining to hear a pair of Planned Parenthood defunding cases, illustrate an important point: It's impossible to classify Supreme Court Justices with purely partisan labels."

    Well, no. It proves that 3 current justices aren't generally partisan hacks (e.g. Roberts, Gorsuch, and Kavanaugh). Although I would like to see Kavanaugh's rulings on modern privacy issues before I don't toss the hack card his way. At least at this point, Roberts and Gorsuch have shown a reliable history of not just siding with their tribal group. The same cannot be said of the rest of the court.

  • sharmota4zeb||

    Thanks for the heads up. This might be good news for me. In a couple of weeks, a county judge will decide on any pretrial conditions of my living outside of jail.

  • Quo Usque Tandem||

    How much lawyer can you afford?

  • Hank Phillips||

    ... as opposed to dying?

  • UnrepentantCurmudgeon||

    "It's impossible to classify Supreme Court Justices with purely partisan labels."

    This should have been clear after Earl Warren became Chief Justice.

    Three areas in which it is not surprising to see "liberal/conservative" lines blurred: First Amendment, Fourth Amendment and Sixth Amendment.

  • Hank Phillips||

    Good article, but euphemism and equivocation in labeling conveys nothing about the thing described, but rather, the narrator. The two judges exercised the virtues of honesty and courage. Their colleagues preferred to receive large salaries extorted via the Manifesto income tax for sitting on their butts making excuses for not earning the extorted boodle. Clear enough?


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