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High Court Declines Restitution Challenge

By George Khoury, Esq. on January 07, 2019 4:45 PM

This week, a highly anticipated case asking whether restitution can be ordered without a jury trial got killed during a SCOTUS conference.

However, in the aftermath an unlikely pair of Justices agreed over a dissent. Justice Gorsuch filed a written dissent to which Justice Sotomayor joined. The dissent explains that ordering restitution without the safeguard of a jury trial seems to run afoul of either or possibly both the Sixth and Seventh Amendments' guarantees of a jury for criminal and civil matters.

$110 Billion Restitution Shortfall

One of the more notable statistics cited in the dissent is the $110 billion in outstanding (unpaid) restitution that has been ordered (as of 2016). And as the Justices point out, that number is up from $6 billion in 1996. The dissent also notes that failure to pay restitution can also result in more severe consequences, such as the loss of voting rights, reincarceration, and further court supervision.

The dissent further explains that restitution is an additional penalty and is imposed alongside a criminal conviction, which would logically place it under the Sixth Amendment's purview, which should dictate that to award restitution, the sums must be proven to a jury beyond a reasonable doubt. Historically, at common law, restitution would only be ordered for the return of sums of money or goods listed in a complaint, and proven at trial. Historically, U.S. courts also required juries to determine the value of stolen property in order to award restitution.

Interestingly, the underlying case doesn't involve individual victims, but rather CitiGroup and two individuals' scheme to lie on mortgage applications to secure funding to purchase properties to grow marijuana on.

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