Circuits continue to split over applying Apprendi to restitution

Last year, SCOTUS held in Southern Union v. U.S. that the rule established in Apprendi v. New Jersey – in which the Court held that the Sixth Amendment’s jury-trial guarantee requires that any fact (other than the fact of a prior conviction) which increases the maximum punishment authorized for a particular crime be proved to a jury beyond a reasonable doubt – applies to the imposition of criminal fines.  

On the issue of restitution, the Seventh Circuit recently joined the minority view (shared by the Eighth and Tenth Circuits) that restitution is civil in nature, and so a jury finding is not required to determine the amount to be paid.  See U.S. v. Wolfe, No. 11-3281 (7th Cir. 2012).But again, that is the minority view.  And this is an issue that should be litigated in Kansas. 

Southern Union's holding has already been used in Kansas to make other Sixth Amendment arguments.  In State v. Urista, No. 103,089, Rachel Pickering (one of the the excellent attorneys over at the ADO) recently argued that the Sixth Amendment right to a jury trial was violated when offender registration was ordered based on the the sentencing judge's factual finding that the defendant had committed a felony with a deadly weapon.  Rachel filed a Rule 6.09 letter stating that Southern Union supported her argument.  A decision in the case could come out at any time.

I will leave for another blog post other uses for the holding in Southern Union.  But one could argue that it could be used to challenge things like BIDS fees - after all, the judge has to make a finding that the defendant has an ability to pay, and the requirement to pay is only triggered with a conviction (making it similar to restitution).  But today, there is an active split on whether the right to a jury trial will apply to restitution amounts, and the split currently favors a finding by a jury.

[Update: as blogged about here, KSC vacated Mr. Urista's sentence on February 8, 2013 on other grounds and did not reach the issue of whether or how Apprendi might apply to restitution. As a result, that issue is likely to be argued in future cases.]