Restitution and the Excessive Fines Clause

• Author: Kevin Bennardo
• Position: Clinical Associate Professor of Law, University of North Carolina School of Law.
• Pages: 21-45

Restitution and the Excessive Fines Clause Kevin Bennardo * INTRODUCTION Restitution is an important component of a criminal offender’s sentence. Increasingly, it is imposed mandatorily and encompasses an ever-widening scope of payments. 1 Because courts commonly impose restitution regardless of the offender’s ability to pay, 2 it is often the last part of an offender’s sentence to be discharged. Yet the constitutional limits of a sentencing court’s ability to impose a restitution order on a criminal defendant are murky. The seemingly straightforward question of whether the Excessive Fines Clause of the Eighth Amendment applies to restitution orders has not been answered, despite the fact that both have been around for well over 200 years. This Article offers solutions to further the conversation regarding the Eighth Amendment’s limits on restitution. The Excessive Fines Clause applies to payments that involve sufficient governmental involvement and are at least partially punitive. 3 Criminal restitution satisfies both components and therefore falls within the compass of the Clause. To test for constitutional excessiveness, the amount of the restitution order should be aggregated with other monetary payments that constitute the Eighth Amendment “fine.” That cumulative fine should then be weighed against the gravity of the defendant’s offense conduct for gross disproportionality. Restitution should not be subjected to a special causation-based excessiveness test because causation is predominantly relevant to the compensatory aspect of restitution, not to its punitive aspect. Part I of this Article provides an overview of restitution systems and statutes in the United States. Part II provides an overview of the case law interpreting the Excessive Fines Clause of the Eighth Amendment. Part III discusses how the Excessive Fines Clause should be applied to restitution in criminal cases. Copyright 2016, by KEVIN BENNARDO.  Clinical Associate Professor of Law, University of North Carolina School of Law. Many thanks to the editors, participants, and audience members at the Louisiana Law Review and Pugh Institute’s joint sentencing symposium for their perspectives. 1. See Cortney E. Lollar, Punitive Compensation , 51 TULSA L. REV. 99, 103–04 (2015). 2. See infra Part I. 3. See infra Part II.A, C. 22 LOUISIANA LAW REVIEW [Vol. 77 I. AN OVERVIEW OF CRIMINAL RESTITUTION Criminal restitution systems take various forms in the United States. These systems have several defining characteristics: the types of offenses that authorize restitution, the persons who are eligible to receive restitution payments, the types of harms or losses that are recoverable in restitution, and whether an order of restitution is mandatory, discretionary, or subject to exceptions. In the federal system, a court may order restitution for the violation of any offense. 4 The Mandatory Victim Restitution Act of 1996 5 (“MVRA”) requires mandatory restitution for a wide range of offenses. Examples include crimes of violence; 6 offenses against property; offenses relating to tampering with consumer products; and offenses relating to theft of medical products, as long as at least one identifiable victim has suffered a physical injury or pecuniary loss. 7 Other statutory provisions mandate restitution for specific offenses, including sexual abuse; 8 sexual exploitation and other abuse of children; 9 domestic violence and stalking; 10 telemarketing fraud; 11 peonage, slavery, and human trafficking; 12 and failure to pay child support obligations. 13 Restitution is generally recoverable by the “victim” of an offense. 14 The MVRA defines a victim as “a person directly and proximately harmed as a result of the commission of an offense for which restitution may be 4. 18 U.S.C. § 3663(a)(1)(A) (2012) (permitting restitution for all offenses under Title 18, violations of the Controlled Substances Act, and criminal violations of Title 49 relating to air piracy); see also 18 U.S.C. § 3556 (2012). Restitution may also be ordered as a condition of probation or supervised release. See 18 U.S.C. §§ 3563(b)(2), 3583(d)(3) (2012). 5. 18 U.S.C. § 3663A (2012). 6. A crime of violence is an offense that either “has as an element the use, attempted use, or threatened use of physical force against the person or property of another” or “is a felony that, by its nature, involves a substantial risk that physical force again the person or property of another may be used in the course of committing the offense.” 18 U.S.C. § 16 (2012). 7. 18 U.S.C. § 3663A(c)(1) (2012). 8. 18 U.S.C. § 2248 (2012). 9. 18 U.S.C. § 2259 (2012). 10. 18 U.S.C. § 2264 (2012). 11. 18 U.S.C. § 2327 (2012). 12. 18 U.S.C. § 1593 (2012). 13. 18 U.S.C. § 228(d) (2012). 14. See, e.g. , 18 U.S.C. § 3663A(a)(1) (2012). 2016] RESTITUTION AND THE EXCESSIVE FINES CLAUSE 23 ordered.” 15 In the case of a scheme or conspiracy, a victim includes “any person directly harmed by the defendant’s criminal conduct in the course of the scheme [or] conspiracy.” 16 The court may appoint another individual to assume the victim’s rights if the victim is a minor or otherwise incompetent. 17 The victim need not be an individual, and the government may be eligible to recover restitution as the victim. 18 If the victim is deceased, restitution is payable to the victim’s estate. 19 The defendant can also agree to pay restitution to persons other than the statutory victim of the offense. 20 To be recoverable, the loss must be the proximate result of the offense. 21 By the parties’ agreement, the court may order restitution to recompense losses caused by activity for which the defendant was not charged or convicted. 22 For property damage, restitution may take the form of returning the property or compensating the victim for the value of the property. 23 Restitution for bodily injury may include “the cost of necessary medical and related professional services and devices relating to physical, 15. 18 U.S.C. § 3663A(a)(2) (2012). 16. Id. 17. Id. The defendant cannot be appointed as the representative of the victim. Id. 18. See United States v. Ekahem, 383 F.3d 40, 43–44 (2d Cir. 2004) (affirming order of restitution to the United States Department of Agriculture); United States v. Lincoln, 277 F.3d 1112, 1114 (9th Cir. 2002) (affirming order of restitution to the United States Post Office); see also N.J. STAT. ANN. § 2C:43-3(h) (West 2016) (requiring restitution order “[i]n any case where the victim of the offense is any department or division of State government”); N.Y. PENAL LAW § 60.27(9) (McKinney 2016) (defining “victim” to include state law enforcement agencies when the offense is a felony involving the sale of a controlled substance). When multiple victims of an offense in Minnesota exist, non-governmental entities receive priority when ordering restitution. MINN. STAT. ANN. § 611A.045(1)(b) (West 2016). 19. 18 U.S.C. § 3663(a)(1)(A) (2012). 20. 18 U.S.C. § 3663A(a)(3) (2012); see also 18 U.S.C. § 3663(a)(1)(A) (2012). 21. See 18 U.S.C. §§ 2248(b)(3)(F), 2259(b)(3)(F), 2264(b)(3)(F), 2327(b)(3), 3663A(a)(2) (2012). 22. Under the MVRA, restitution can be mandated when the parties agree that the defendant’s commission of a listed offense gave rise to the plea agreement, even if the conviction is not for a listed offense. See 18 U.S.C. § 3663A(c)(2) (2012); see also NEB. REV. STAT. ANN. § 29-2280 (West 2016) (permitting an order for restitution of losses “sustained by the victim of an uncharged offense or an offense dismissed pursuant to plea negotiations” with consent of the parties). 23. See 18 U.S.C. §§ 3663(b)(1), 3663A(b)(1) (2012). 24 LOUISIANA LAW REVIEW [Vol. 77 psychiatric, and psychological care,” 24 “the cost of necessary physical and occupational therapy and rehabilitation,” 25 and reimbursement for income lost because of the offense. 26 If the offense results in death, a restitution order may include “the cost of necessary funeral and related services.” 27 Regardless of the offense, restitution may include payments to offset other expenses or lost income incurred from participating in the investigation or prosecution of the offense. 28 Certain offenses also lead to the mandatory repayment of other expenses, such as attorney’s fees, temporary housing and child care expenses, and “any other losses suffered by the victim as a proximate result of the offense.” 29 When a restitution order is discretionary, the victim may consent to restitution paid in services instead of money, or paid to another person or organization. 30 When restitution is mandatory, however, whether the victim may decline to receive the payment is unclear. 31 Some statutes identify circumstances in which the court should refrain from ordering restitution. The MVRA directs courts not to order restitution when “the number of identifiable victims is so large as to make restitution impracticable” 32 or when determining causation or the amount of the victim’s losses would so complicate the sentencing process “that the need to provide restitution to any victim is outweighed by the burden on the sentencing process.” 33 Many states have quasi-mandatory restitution statutes that require the sentencing court to impose restitution unless the 24. See 18 U.S.C. §§ 3663(b)(2)(A), 3663A(b)(2)(A) (2012). 25. See 18 U.S.C. §§ 3663(b)(2)(B), 3663A(b)(2)(B) (2012). 26. See 18 U.S.C. §§ 3663(b)(2)(C), 3663A(b)(2)(C) (2012). 27. See 18 U.S.C. §§ 3663(b)(3), 3663A(b)(3) (2012). 28. See 18 U.S.C. §§ 3663(b)(4), 3663A(b)(4) (2012). 29. See, e.g. , 18 U.S.C. §§ 2248(b)(3), 2259(b)(3), 2264(b)(3) (2012). 30. 18 U.S.C. § 3663(b)(5) (2012). 31. Compare United States v. Johnson, 378 F.3d 230, 245 (2d Cir. 2004) (holding that the MVRA “requires restitution regardless of the consent of victims” and that the sentencing court can assign the victim’s interest in the restitution payment to the Crime Victims Fund), with United States v. Speakman, 594 F.3d 1165, 1175 (10th Cir. 2010)...