Guarding the rights of the accused and accuser: the jury's role in awarding criminal restitution under the Sixth Amendment.

AuthorBarta, James

Guided by common law practice, the Supreme Court has steadily expanded the Sixth Amendment jury trial right since deciding Apprendi v. New Jersey. (1) The Sixth Amendment now guarantees a right to have a jury find any fact affecting the maximum amount of punishment that a judge may impose with respect to imprisonment, (2) capital punishment, (3) and criminal fines. (4) But courts have been reluctant to extend this rule to criminal restitution. (5)

Federal and state courts regularly require criminal offenders to make restitution to their victims by returning stolen property or making compensatory payments. (6) The restitution ordered typically depends on the nature and amount of the victim's loss. (7) Although most courts hold that restitution is a criminal penalty, subject to the Sixth Amendment, (8) they have rejected the idea that there is a right to have a jury determine the amount of restitution owed. (9)

That conclusion is ripe for reexamination. Recent Supreme Court cases reiterate that the jury trial right depends on common law practice and have expanded the jury's fact-finding role. (10) Yet few, if any, courts have examined what role the jury played in awarding criminal restitution at common law. (11) Therein lies a fatal flaw. Relying on historical evidence of common law practice, this Note argues that the Sixth Amendment guarantees the right to have a jury to find the facts affecting the amount of restitution that a judge may order by law. (12)

The argument proceeds as follows. Part I describes the framework that the Court has erected for understanding and applying the Sixth Amendment jury trial right. Because the scope of the right relies heavily upon common law practice, Part II describes the common law procedures that historically applied to restitution. Based on that account, Part III argues that the Sixth Amendment jury trial right extends to criminal restitution and requires juries to find the facts affecting the amount of restitution owed by law. This section also sketches the boundaries of the right with respect to restitution. Finally, Part IV concludes.


    Over the last fifteen years, the "Court has sought to identify the historical understanding of the Sixth Amendment jury trial right and determine how that understanding applies to modern sentencing practice." (13) Treatises as well as common law decisions have guided the Court in this endeavor. (14) Members of the Court have sharply disagreed on how to understand and apply those sources, but recent decisions have brought greater consistency and clarity to the Court's methodology. (15)

    Broadly speaking, these decisions embody three shifts in the Court's understanding of the jury trial right. First, the Court adopted a methodology that looks to the common law. Second, the Court rejected a proposed distinction between so-called "sentencing factors" and elements of a crime. And third, the Court rejected a similar distinction between "sentencing facts" and elements of a crime. This Note will trace how these movements developed and then examine the lessons they hold for interpreting the Sixth Amendment.

    1. Embracing History and Rejecting the Sentencing-Factors Distinction

      The first two developments--the embrace of a historical methodology and the rejection of the sentencing-factors distinction--occurred in the space of a single case: Apprendi v. New Jersey, (16) At issue was the constitutionality of New Jersey's "hate crime" enhancement. (17) The enhancement increased the maximum statutory penalty for certain offenses if during sentencing the judge found that the offender had acted with animus by a preponderance of the evidence. (18) The Court pronounced this sentencing scheme unconstitutional based on its understanding of the role of the jury at common law. (19)

      Relying on eighteenth- and nineteenth-century treatises, the Court observed that the jury trial right historically had stood for two principles. (20) The first was that "the truth of every accusation" should be passed on by a jury of one's peers. (21) And the second was that "all the essential elements of guilt" should be proven beyond a reasonable doubt. (22) In the Court's view, the hate crime enhancement conflicted with both principles because it allowed a judge to find an element of a crime--the fact that the offender had acted with animus--by a preponderance of the evidence. (23)

      By equating animus with an element of the crime, the Court rejected an attempt by New Jersey and the dissenting justices to categorize animus as a mere "sentencing factor." (24) The majority responded that this distinction was "unknown ... during the years surrounding our Nation's founding." (25) The criminal law historically had affixed a particular punishment to a given crime and specified the circumstances surrounding the offense that would result in greater or lesser punishment. (26) This structure not only cabined judicial discretion, but it also meant that the jury found the facts supporting any given punishment. (27) The procedural rules of the time required the prosecutor to charge in the indictment and prove to the jury that a crime had "'been committed under th[e] circumstances'" described in the statute. (28) And the prosecutor was required to "'state th[ose] circumstances with certainty and precision,'" thereby allowing a defendant to predict the punishments that could be imposed upon him from the face of the indictment. (29)

      Based on this tight "historic link between verdict and judgment," the Court rejected the sentencing factors distinction. (30) And the Court announced the general rule that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (31)

      The Court, however, stopped short of embracing the broader view of the jury trial right defended by Justice Clarence Thomas. Whereas the majority defined "crime" by reference to the facts affecting the maximum sentence available by law, (32) Justice Thomas argued that a "'crime' includes every fact that is by law a basis for imposing or increasing punishment." (33) He thus concluded that a jury must find any fact affecting the "kind, degree, or range of punishment" to which the prosecution is entitled. (34) This formulation left judges the discretion to fashion sentences within legislatively prescribed boundaries, but not to find the facts affecting the boundaries themselves. (35)

      Justice Thomas argued that his rule was more consistent with common law practice than the majority's, due to the particularity with which aggravating facts had to be alleged in an indictment. (36) A larceny case from Massachusetts furnished one of his examples. In Commonwealth v. Smith, (37) the defendant was prosecuted for larceny under a statute that fixed the punishment at three times the value of the goods stolen. (38) Although convicted of stealing multiple items, the court refused to sentence Smith for the items whose value was not set forth in the indictment. (39) The reason for this was that the punishment for the crime varied with the amount stolen. (40) Thus, according to Justice Thomas, the Massachusetts court treated the value of the stolen goods as an element of the crime. (41)

    2. Rejecting the Sentencing-Facts Distinction

      Although the Apprendi majority did not adopt Justice Thomas's proposed rule, his concurrence laid the foundation for expanding Apprendi beyond the context of maximum sentences. The Court's rejection of the sentencing-facts distinction builds on the logic of Justice Thomas's concurrence. As evidence, consider the Court's initial attempts to limit Apprendi and its recent rejection of those limits.

      1. Attempts to Limit Apprendi

        Just two years after Apprendi, the Court adopted a rule in direct conflict with the Thomas concurrence in Harris v. United States. (42) The Harris Court declined to require juries to find the facts triggering mandatory minimum sentences. (43) To reach this result, the Court read Apprendi narrowly. Although Apprendi had noted that the jury trial right both served to prevent governmental overreaching and to promote sentencing predictability, (44) little mention of predictability appeared in Harris. Instead, the Court characterized its ruling in Apprendi as concerned with placing an upper limit on judicial power. (45) Harris thus cabined Apprendi's rejection of the sentencing factors distinction to statutory maximums, thereby implicitly rejecting Justice Thomas's position that a jury must find any fact that affects the "range of punishment" authorized by law. (46)

        Even so, the Court did not repudiate Apprendi's emphasis on common law practice. A plurality of the Court instead distinguished Apprendi on historical grounds, observing that judges had long exercised discretion in sentencing. (47) Although that discretion was not absolute, the plurality found little evidence that courts "submitted] facts increasing the mandatory minimum to the jury." (48) The plurality, however, did not engage with the evidence Justice Thomas had compiled in Apprendi.

        The Court also limited the reasoning of Apprendi in Oregon v. Ice. (49) In Ice, the Court held that a jury need not make the factual findings required by law to impose consecutive terms of imprisonment. (50) The majority justified the decision on two grounds: "historical practice and respect for state sovereignty." (51)

        The Court's willingness to tie the Sixth Amendment jury trial right to the "historical role of the jury at common law" accorded with Apprendi (52) Where the Court differed in its approach was in its reading of history. Rather than examine how the jury's role in situations where the punishment authorized depending upon certain factual findings--as the Court had in Apprendi--the majority simply noted that the jury traditionally had played no...

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