The US Supreme Court on Monday ruled that judges can order restitution payments in criminal cases even after a 90-day deadline has expired.
At issue in the case was how to interpret the federal statute that authorizes the imposition of restitution payments, and which includes the provision of the 90-day deadline. The court split 5 to 4 in the decision.
Writing for the majority, Justice Stephen Breyer embraced a flexible view of the statute. He stressed that as long as a judge made clear that restitution would be part of the sentence, the judge could take longer than 90 days to impose that penalty.
“We hold that a sentencing court that misses the 90-day deadline nonetheless retains the power to order restitution,” Breyer wrote. He said the decision is limited to those judges who “made clear prior to the deadline’s expiration that it would order restitution, leaving open only the amount.”
Chief Justice John Roberts dissented. He said the majority’s position undercuts the value of finality of an imposed sentence.
“The rule is that a trial court cannot alter a sentence after the time of sentencing,” Roberts said.
Not the usual suspects
The decision is interesting in part because it drew a somewhat unusual lineup of justices. Justice John Paul Stevens – who frequently votes with the court’s liberal wing – joined conservative Justices Antonin Scalia and Anthony Kennedy in signing on to the Roberts dissent.
Meanwhile, Justice Clarence Thomas – who frequently votes with the court’s conservatives – provided the key fifth vote for Breyer’s majority opinion.
The sentencing issue arose in the case of Brian Dolan, who pleaded guilty in 2007 to a federal charge of assault resulting in serious bodily injury. Dolan was sentenced to 21 months in prison and three years of supervised release.
Restitution in the case was mandatory, but the judge acknowledged that he had insufficient information to order full restitution at the time of the sentencing hearing. During the hearing, the judge said he was leaving the restitution issue open to receive more information.
The federal probation office provided the extra information more than two months after Dolan’s sentencing hearing – but still more than three weeks before the 90-day statutory deadline would expire.
Despite the approaching deadline, the judge set a hearing on the restitution issue nearly four months later. At that hearing, Dolan’s lawyer complained that the deadline to impose restitution had already passed. The judge rejected the argument.
A month later, the judge ordered Dolan to pay his victim nearly $105,000 in restitution. By the time the order was issued, Dolan had already been released from prison.
On appeal, the Tenth US Circuit Court of Appeals affirmed the district judge upholding the restitution order.
Federal appeals courts were split on the question of whether the statute permitted restitution orders beyond the 90-day deadline. Two circuits, the First based in Boston and the Eighth in St. Louis, had ruled that such orders were permitted after the 90-day deadline. Two other circuits, the Seventh based in Chicago and the Eleventh in Atlanta ruled that the statute created a firm deadline and that no restitution orders were authorized after the deadline.
“Unless one reads the relevant statute’s 90-day deadline as an ironclad limit upon the judge’s authority to make a final determination of the victim’s losses, the statute before us itself provides adequate authority to do what the sentencing judge did here,” Breyer wrote for the majority.
Roberts and his fellow dissenters read the statute as imposing an ironclad limit. “These provisions authorize restitution orders at sentencing,” he wrote. “They confer no authority to order restitution after sentencing has concluded.”
The chief justice added: “The court’s suggestion to require notice of intent to augment the sentence at some future date may be a good idea. But an even better one might be to set a particular date – say, 90 days after sentencing – on which the parties could base their expectations.”
Roberts said, “That was Congress’s choice, and it should be good enough for us.”
Other Supreme Court news Monday: