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Congressional punting on awards of restitution

Below, Carl Cecere of Akin Gump recaps last week’s oral argument in Dolan v. United States.  [DISCLOSURE: Akin Gump and Howe & Russell represent the petitioner in this case, but Carl was not involved in the proceedings.] Check the Dolan (09-367) SCOTUSwiki page for additional updates.

The case of Dolan v. United States, No. 09-367, argued on April 20, might concern a relatively obscure statutory issue—whether an award of restitution made after the ninety-day deadline in 18 U.S.C. § 3664(d)(5) is effective—but it directly touches the lives of an abnormally large number of interested parties.  The possibility that restitution might be awarded in this case means that the circle of direct influence includes more than the usual suspects in a criminal appeal—the defendant, counsel, amici, and the courts of appeals—to include Dolan’s victim, the hospital who treated him (at no cost), and the small army of probation personnel and victim advocates in the District of New Mexico.

This wide and varied lot also includes another interested party; less directly involved, perhaps, but whose presence appears to loom especially large in the collective mind of the Court: Congress.  This is because, as I mentioned in my earlier post here, Congress’s failure to specify the consequences resulting from a violation of Section 3665(d)(5)’s ninety-day requirement is, in essence, a statutory punt to the Court, which necessarily forces the Court to make for itself the difficult policy choice between either sacrificing victims’ rights for the government’s negligence, or granting the district court nearly unfettered discretion to drag out restitution proceedings as long as it wishes.

From the pointed-but-puzzled tenor of the argument last Tuesday, one gets the distinct impression that the Court would rather have Congress answer for itself directly than force the parties to dance around the gap in the statute’s language.  It is also apparent that there are some important points in this case that the Court really wants Congress to understand.  Not only would the Court like for the evident problems with Section 3664(d)(5) to be fixed, but it would also encourage Congress to better exercise its judgment in the future so that similar drafting blunders can be avoided.  Justice Stevens may have articulated this feeling most pointedly when he recognized a possible “hole in the statute that Congress has to amend,” and wondered aloud whether reversal might be the better outcome here, if for no other reason than it would send the strongest possible mandate to Congress for change.

The Justices began their questioning, and continued through most of the argument, with a detailed analysis of the parties’ positions on application of the final judgment rule.  Arguing on behalf of the petitioner, Pamela Karlan contended that the rule requires courts to treat the ninety-day period as mandatory and jurisdictional.  As traditionally defined, she explained, this rule provides that criminal defendants can only appeal from a final judgment, which exists only when there is nothing left for the court to do but ensure that the judgment is carried out.  Thus, she continued, all aspects of the sentence, including the term of imprisonment, forfeiture, fines—and, of course, restitution—must have been determined before the sentence is final and can be appealed.  Permitting the district court to hold restitution issues over for a prolonged and indefinite period o would be unfair because it could result in unacceptable delays before the defendant could appeal any part of the sentence.

The federal government, on the other hand, represented by Assistant to the Solicitor General Toby Heytens, attacked the central premise of this consequentialist argument—that there can be only one final judgment in a criminal case involving a restitution award.  To the contrary, Heytens argued, portions of the sentence can become final at different times and can therefore be appealed separately.  To the government, the conviction and term of imprisonment become final when entered, and should be appealed immediately.  Then, if restitution is awarded separately, it should be appealed separately.

The members of the Court appeared to struggle deeply with these competing arguments.  Several of the justices showed some support for the government’s two-appeal approach:  Justice Ginsburg, for example, asked why restitution should not be treated like Federal Rule of Civil Procedure 54(b), which allows final judgment to be entered on a claim-by-claim or party-by-party basis and would therefore clearly allow multiple “final judgments” in a single proceeding.  And both Justices Alito and Ginsburg noted that such piecemeal appeals might be appropriate because a restitution award is fundamentally different from other parts of the criminal sentencing process, given its compensatory rather than punitive nature.  Justice Breyer, too, noted that he viewed the idea of multiple appeals as compatible with the appellate rules.

But virtually at the same time, Justice Breyer also picked up on Karlan’s argument that piecemeal appeals would be fundamentally incompatible with restitution’s place within the larger criminal sentencing process, in which each piece interacts with the others—with a higher restitution component possibly offsetting jail time, and vice versa.  (Chief Justice Roberts later echoed this point in the questioning.)  Moreover, Justice Breyer appeared less confident than he initially appeared regarding the case’s effect on the criminal appellate landscape, repeatedly expressing concern about unintended consequences in applying the finality rules in such a unique set of circumstances.

The Justices also attempted a purposive reading of the statute.  Justices Alito and Kennedy noted that treating the deadline as mandatory would be contrary to the “whole design and thrust” of the victim restitution statutes, which were designed to protect victims’ restitution awards from mishandling by prosecutors rather than to punish victims for governmental mistakes.  However, Justice Scalia, perhaps betraying his true textualist colors, countered that judges’ failures not infrequently result in criminal defendants receiving undeserved benefits.

Justices Ginsburg and Sotomayor then expressed concern that the government would unduly benefit from its attempt to water down the ninety-day requirement.  In response, the government noted that the ninety-day deadline could be enforced through an appeal by the government— although, as Justice Scalia noted, it is unclear what remedy would be available when an appeal is taken after the ninety-day period has already lapsed.

Members of the Court also sought to resolve how to treat the ninety-day deadline through a categorical approach, by trying to find some familiar statutory bucket into which they could toss restitution awards and thereby determine their effect.  For instance, Justice Breyer noted the similarity between the ninety-day deadline and deadlines that Congress might set for agency action.  If the agency does not meet the deadline, he suggested, no one would argue that the agency was deprived of rulemaking power.  On the other hand, Justice Scalia appeared to regard the ninety-day deadline as more analogous to the deadline for filing an appeal—in which it is assumed from the gravamen of the perfection process that a late notice deprives the Court of jurisdiction, although no specific penalty is mentioned.  Here too, the Court seemed to struggle with the unique nature of a restitution award; neither wholly a criminal penalty, nor entirely a civil judgment.

From these comments and questions, there did not appear to be anything close to a consensus on the interpretive method that might best resolve the statute’s meaning.  And there is no clear majority in favor of either the petitioner or the government’s position.  In fact, it is more likely that several justices walked away from the argument no more ready to decide the case than when they began.  Further, the generally predictable voting blocs are completely splintered, with strange bedfellows like Justices Ginsburg and Alito framing nearly identical arguments.

Regardless of the outcome, however, one can only hope that Congress is, in fact, listening. Perhaps it will eventually answer the thorny questions presented on this case for itself.  And perhaps Congress might learn a thing or two from this case on how to draft a statute, though this seems too much to hope for.

An opinion in this case is expected sometime before the June recess.