Justices Sonia Sotomayor and Neil Gorsuch are on a mission to restore criminal defendants’ constitutional rights. In November, the two justices teamed up to champion Sixth Amendment safeguards against notoriously flawed forensic analysis. Weeks later, they came together to attack policing for profit, endorsing Eighth Amendment protections against civil forfeiture. And on Monday, the two joined forces once again to stick up for the right to a trial by jury when the government seeks to impose crippling fines in the form of criminal restitution.
It’s no surprise that Sotomayor and Gorsuch are emerging as the court’s staunchest defenders of the Sixth Amendment. Sotomayor is a crusader for the rights of the accused and views government overreach through the lens of social justice. Gorsuch is a libertarian skeptic of state power who sees juries as a bulwark against tyranny. (For what it’s worth, so did John Adams, who called representative government and trial by jury “the heart and lungs of liberty.”) The two justices may disagree on much. But it’s perfectly logical that they’d unite to stick up for defendants who demand that a jury—not a judge—decide the facts that justify criminal penalties.
The case in question, Hester v. United States, should be an easy one. In 2000’s Apprendi v. New Jersey, the Supreme Court held that prosecutors must prove any fact that increases the maximum sentence for a crime to a jury beyond a reasonable doubt. This rule is quite sensible and tracks the Framers’ understanding of the Sixth Amendment. After all, if a judge can unilaterally increase a sentence by finding facts not proved to the jury, then the Constitution’s guarantee of a trial by jury is rendered meaningless. In 2012’s Southern Union Company v. United States, the court extended Apprendi to criminal fines, holding that any fact that increases a maximum fine must be proved to a jury beyond a reasonable doubt.
Hester involves a stepbrother of criminal fines: criminal restitution. Under federal and state laws, courts may order defendants to compensate their victims once they are found guilty. A federal statute permits a judge, and a judge alone, to find the facts necessary for a “restitution order” and calculate the total sum. Pursuant to that law, a federal court directed Marco Luis and Joshua Hester—both convicted of mortgage fraud—to pay $329,767 in restitution to Citigroup. The judge calculated this sum on the basis of his own factual findings. Both men appealed, insisting that a jury, not a judge, must decide the facts that justified the order. The courts below disagreed, asserting that the Sixth Amendment applies only to criminal fines, not criminal restitution. Luis and Hester appealed to the Supreme Court.
On Monday, the court declined to take the case. But Gorsuch, joined by Sotomayor, wrote a sharp opinion arguing that the right to a jury trial does, indeed, apply to criminal restitution. The government’s claim to the contrary, the justice wrote, is “difficult to reconcile with the Constitution’s original meaning.” He’s right. Under English common law—from which the Framers drew when drafting the Sixth Amendment—courts could only order the return of stolen goods after a jury found them to be stolen. And in 19th-century American courts, a jury had to find the value of stolen property before a judge could order restitution. It is, Gorsuch wrote, “hard to see why the right to a jury trial should mean less to the people today than it did to those at the time” when the Bill of Rights was adopted.
It might be hard to sympathize with Luis and Hester, small-time crooks who defrauded a bank. And certainly there are situations in which restitution serves a righteous purpose, as when victims of theft are reimbursed for their losses. But in today’s criminal justice system, restitution does not always operate so nobly. It has, instead, become a part of “cash-register justice,” saddling defendants with onerous debts that often make rehabilitation impossible. In recent decades, legislatures have directed courts to impose a vast array of fines and fees that turn the accused into revenue sources for the state.
Rather than making victims whole again, then, criminal restitution frequently functions as a cash grab for the government at best and an affront to civil liberties at worst. Offenders can be compelled to refund law enforcement for investigating crimes—charged for the cost of lab procedures, like DNA and drug tests, in the form of restitution. And they can be forced to pay restitution for the cost of their own prosecution, incarceration, and parole. Prosecutors have stretched the theory that the government is a “victim” to absurd extremes: An Ohio appeals court ruled that a defendant can be ordered to pay back money that police gave to a confidential informant to purchase drugs in a sting. Prosecutors insisted that the police department—which voluntarily turned over the cash as part of its own operation—was a victim deserving of restitution.
Consider these other real examples of the system in action, laid out in a pathbreaking law-review article by Cortney E. Lollar:
• Terrence Johnson was convicted of wire fraud in Tennessee and ordered to pay $40,000 in restitution. He served his prison term but was unable to make enough money to pay the full restitution order. Tennessee therefore deemed his sentence incomplete and denied him the right to vote. An appeals court upheld his disenfranchisement.
• James Chalupnik, a janitorial supervisor at a post office, took undeliverable BMG Columbia House CDs and DVDs from the post office trash and sold them. The post office discarded the items under an agreement with BMG by which undeliverable discs were simply thrown away. Chalupnik was convicted of mail fraud and ordered to pay restitution of $78,818 to BMG—even though the company did not suffer a penny of financial loss. An appeals court upheld the order.
• A police officer called for backup after a suspect fled. Another officer responded but crashed her car on her way to the scene. A court eventually ordered the suspect to pay $22,509 to cover the cost of the second officer’s car—even though he played no direct role in the crash. The Colorado Supreme Court upheld the decision, holding that the second officer was a “victim” under the state’s restitution statute.
In none of these cases did a jury decide the facts underpinning the restitution order.
As Lollar puts it, restitution now functions as a “core component of criminal punishment.” (And a lucrative one: From 2014–16 alone, Gorsuch noted, federal courts sentenced 33,158 defendants to pay $33.9 billion in restitution.) Those who cannot cough up the money may lose their right to vote, their driver’s licenses, and their jobs. They may even be sent back to prison. Stringent restitution laws make it more difficult for offenders to re-enter society and participate in self-governance. At a bare minimum, shouldn’t defendants be able to demand that, in accordance with the Sixth Amendment, a jury decide the facts that trigger this criminal penalty?
Unfortunately, only two justices seem keen to impose constitutional limitations on a judge’s ability to single-handedly impose eye-popping restitution orders. And Justice Samuel Alito wrote separately on Monday to complain that the whole Apprendi line of cases is wrong and should be overturned. With one justice declaring war on the right to a jury trial, and six more hesitant to bolster it, the future of the Sixth Amendment at SCOTUS looks bleak.
But Gorsuch and Sotomayor won’t let jury trials disappear without a fight. And their Hester opinion is a cri de coeur against cash-register justice untethered from the Sixth Amendment. You don’t have to be a progressive reformer or a libertarian originalist to see that today’s criminal-restitution system is in dire need of constitutional restraints.