In Booker's Shadow: Restitution Forces a Second Debate on Honesty in Sentencing

Abstract

This article explores the question left unanswered by the Supreme Court's January, 2005, decision in United States v. Booker. Specifically, it looks at whether the Mandatory Victims Restitution Act of 1996 (MVRA), which governs restitution in federal criminal cases, violates the Sixth Amendment. The MVRA expressly requires that judges, rather than juries, decide issues of restitution. The process mandated by the MVRA often results in orders of restitution that are much harsher than a defendant could have reasonably predicted from the indictment, the evidence presented at trial, and/or the defendant's admission of guilt. This article concludes that such unexpected consequences violate Rule 11, Fed. R. Crim. P., which directs the district judge to inquire whether a defendant who pleads guilty understands the nature of the charge against him and whether the defendant is aware of the consequences of his plea. The federal appellate courts have uniformly held that the MVRA is unaffected by the Sixth Amendment. This article employs a Booker-type analysis to show that the circuit courts are misapplying the principles of Booker in reaching such a conclusion. It argues that contrary to the conclusion of the appellate courts, the MVRA has a statutory maximum for purposes of Booker and that maximum is the full amount of each victim's losses. The article also contends that the appellate courts have failed to understand the constitutional impact of the mandatory nature of the MVRA for certain crimes and that assuming (as the courts have decided) that there is no statutory maximum on restitution under the MVRA, there would be no limit on the sentencing judges' discretion. Such unfettered judicial discretion would also result in constitutional weaknesses in the MVRA. Finally, the article urges Congress to amend the MVRA to remedy the constitutional weaknesses and concludes that, in the meantime, the courts can help preserve defendants' Sixth Amendment rights by strictly adhering to the Supreme Court's restitution precedent established by the 1990 decision, Hughey v. United States, in which the Court held that a defendant may only be ordered to make restitution for losses proximately resulting from the offenses for which he is convicted, not for additional losses.