Thursday, December 6, 2012

Is Restitution a Criminal Penalty Requiring the Jury to Speak? (12/6/12)

The Seventh Circuit today decided United States v. Wolfe, 701 F.3d 1206 (7th Cir. 2012), here,, cert. den. 133 S. Ct. 2797 (2013), adopting the minority view that restitution is a civil penalty that does not require the jury to determine the facts.  Doug Berman has a good discussion for an overview of the holding.  See Seventh Circuit rejects extending Southern Union to restitution based on (minority) view it is not a criminal penalty (Sentencing Law and Policy Blog 12/5/12), here.

Aside from the substantive merits of the restitution  issue, Judge Bauer addresses the pressure on a court to override a circuit  court precedent to conform with the majority of the circuits.
Having examined our sister circuits who have addressed whether restitution is civil or criminal in nature, we find ourselves in the minority. Only the Eighth and Tenth Circuits, like us, have found restitution to be civil in nature. See United States v. Millot, 433 F.3d 1057, 1062 (8th Cir. 2006) (stating that restitution orders "are not in the nature of a criminal penalty." (quoting United States v. Carruth, 418 F.3d 900, 904 (8th Cir. 2005))); United States v. Nichols, 169 F.3d 1255, 1279-80 (10th Cir. 1999) (stating that the purpose of restitution under the Victim Witness Protection Act "is not to punish defendants or provide a windfall for crime victims but rather to ensure that victims, to the greatest extent possible, are made whole for their losses." (quoting United States v. Arutunoff, 1 F.3d 1112, 1121 (10th Cir. 1993))).\ 
But a "compelling reason" is required to overrule our Circuit's precedent. United States v. Kendrick, 647 F.3d 732, 734 (7th Cir. 2011). Being in the minority is not enough. This is true even if the trend is against us. See Patel v. Holder, 563 F.3d 565, 569-71 (7th Cir. 2009) (Ripple, J., concurring) (agreeing with the court's judgment because it was based on this Circuit's precedent but writing separately to discuss how our interpretation of the statute "puts us on the distinct minority side of an intercircuit split"); but see Russ v. Watts, 414 F.3d 783, 788 (7th Cir. 2005) (describing why we may overturn our Circuit precedent if no other circuit accepts it (quoting United States v. Hill, 48 F.3d 228, 232 (7th Cir. 1995))). 
Readers will recall that mandatory restitution is not permitted for the Title 26 tax crimes, but is for the Title 28 tax crimes (most prominently, conspiracy).  Usually pleas for Title 26 crimes will include a restitution for the taxes involved.  That provision will then permit the remedies normally available for restitution, as well  as the recently enacted tax assessment remedies for restitution.  See New Statute for Civil Effect of Restitution in Tax Cases (at Least Title 26 Crimes of Conviction) (2/11/11),  here.

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