Justice Gorsuch on the Right to Trial by Jury and Restitution

From Justice Gorsuch's dissent from denial of review today in Rimlawi v. U.S.:

The Fifth Circuit held that a judge may order restitution in a criminal case based on his own factual findings, without the aid of a jury. About that, I have my doubts.

Consistent with the Sixth Amendment's promise of a trial by jury, this Court has held that "[o]nly a jury may find 'facts that increase the prescribed range of penalties to which a criminal defendant is exposed.'" That means a jury must find both those facts that increase a criminal defendant's exposure to imprisonment and any facts that increase his exposure to monetary fines. See Southern Union Co. v. United States (2012). If all that is true, it is difficult to see how a judge's factual findings might suffice to increase a criminal defendant's exposure to a restitution award. As this Court has recognized, "the scope of the constitutional jury right must be informed by the historical role of the jury at common law." And more than a little evidence suggests that, at the time of the founding, juries found the facts needed to justify criminal restitution awards.

I would have granted review in this case to resolve whether the Fifth Circuit's decision comports with this Court's precedents and the Constitution's original meaning. In the absence of this Court's review, I can only hope that federal and state courts will continue to consider carefully the Sixth Amendment's application to criminal restitution orders. Cf. State v. Davison (Iowa 2022) ("restitution must be based on jury findings"). The right to trial by jury should mean no less today than it did at the Nation's founding.

Comments

[rloquitur]

I think there could be a way out of this--the jury verdict is embodies a judgment, and the order of restitution could be viewed as a species of res judicata.

[Noscitur a sociis]

What

[rloquitur]

Think about it--let's say that there was no restitution statute--the criminal conviction would operate as res judicata as to liability--only question would be damages. So where's the harm in having the judge make the determination of damages? Obviously, there's the right to jury trial in the Seventh Amendment; so that's a problem because, in order to get around it, the restitution would be criminal (in which case, the criminal jury trial right would obtain).

[Stupid Government Tricks]

In other words, you're looking for a nice quibble to duck the issue of why judges get to usurp the jury's duty to decide facts.

[SRG2]

FWIW there are a few situations where judges, all the way up to the SC, decide facts.

[Bored Lawyer]

It is certainly res judicata as to the conviction. But not as to the amount of restitution owed and to which victim. If there were a civil trial, there would be a right to a jury on those issues. And restitution is a criminal remedy.

[Noscitur a sociis]

I don’t have the knowledge to opine about whether founding-era juries made findings on criminal restitution, or whether it’s reasonable to regard that as inherent in the sixth amendment jury trial guarantee. But this claim:

If all that is true, it is difficult to see how a judge's factual findings might suffice to increase a criminal defendant's exposure to a restitution award.

doesn’t make a whole lot of sense. It’s not the judge’s findings that expose a defendant to restitution: it’s the conviction. Gorsuch’s theory would seem to require juries to determine every aspect of a criminal sentence.

[Stupid Government Tricks]

How so? Restitution should be based on what the jury decided, not what the judge decided. The sentence does depend on that conviction, and so does whether any restitution is owed, but the amount of restitution depends on the damages, which should be determined by the jury's facts, not the judge's.

[Noscitur a sociis]

When the jury convicted these defendants of a criminal conspiracy, it’s uncontroversial the court was authorized to impose a sentence of anywhere from 0 to 5 years in prison, a fine of $0 to $250,000, and 0 to 3 years of supervised release. The appropriate point within those ranges was a decision for the judge to make, based (if necessary) on the judge’s determination of the facts. Why is it any more a problem that the conviction also authorized restitution, with the judge determining the appropriate amount? Conversely, if the jury needs to decide the amount of restitution, why doesn’t it also need to decide the appropriate amount of jail time?

[CommentMonkey]

I think this is a really good question. Sentencing decisions, whether they concern jail time or statutory fines, generally do not require the judge to revisit the underlying facts determined by the jury. Taking the jury's determination of the facts as a given, the judge then considers extrinsic factors (prior criminal history, aggravating and mitigating circumstances, etc.) and arrives at a sentence.

Determining restitution, on the other hand, requires the judge to go back to the facts of the case and decide a factual question inextricably linked to the question of liability: what is the monetary value of the harm the defendant caused the victims? To me, this seems more likely to overlap the jury's findings concerning the defendant's liability than regular sentencing decisions. It therefore makes more sense to have the jury determine restitution, as Gorsuch seems to believe was the founding-era practice. But these aren't clear lines - no doubt some factors related to regular sentencing come pretty close to requiring the judge to revisit jury questions as well. I'd like to see them take cert in a future case and hash this out.

[Noscitur a sociis]

Sentencing decisions, whether they concern jail time or statutory fines, generally do not require the judge to revisit the underlying facts determined by the jury.

I don’t think that’s accurate, even setting aside the perennial issue of penalizing acquitted conduct. Criminal juries return general verdicts that answer the bare question of whether the elements of the crime were proven or not. To decide how much jail time to impose, the sentencing judge has to make a determination about the details of the offense and the defendant’s role in it, answering questions like: how baldy was the victim harmed? Was the defendant’s conduct a deliberate choice or product of impulse or provocation? Was the offense willful or the product of an understandable mistake? (Federal judges are explicitly required to answer these questions both to calculate the guidelines range and to determine the appropriate sentence given the “nature of the offense” under 18 U.S.C. § 3553(a)(1), but I can’t imagine any judge not doing this to at least some extent). Why is it permissible for a judge to calculate the monetary harm in deciding how much of a fine to impose, but not when deciding how much restitution to order?

[MatthewSlyfield]

"answering questions like: how baldy was the victim harmed? "

Someone held the victim down and shaved his head?

[hobie]

All this stems from Apprendi which was authored by Harlan Thomas in 2000. I'm surprised the 5th ruled in this way

[not guilty]

No, the opinion of the Court in Apprendi v. New Jersey, 530 U.S. 466 (2000), was authored by Justice John Paul Stevens. Justice Thomas joined therein and also wrote a separate concurring opinion.

[hobie]

So it was. I forgot that part

[ReaderY]

I would think that at least in most cases involving restitution, the guilty conviction would represent all the necessary facts. For example, in a fraud case, I would agree that a conviction justifies restitution as a component of the sentence, and then the amount of the restitution would be a matter similar to the length of the sentence.

To hold otherwise would be to elevate property over liberty. I see no reason why a judge gets to determine the length of a prison sentence, but a jury is needed to determine the amount of a fine or restitution.