Is restitution part of the sentence? If so, does Apprendi apply?

In Kansas, restitution is part of a defendant's sentence: "Restitution is one of the dispositions authorized by K.S.A. 21–4603d, and it therefore constitutes part of a criminal defendant's sentence. K.S.A. 21–4603d(b)(1)."  State v. McDaniel, 292 Kan. 443, 446, 254 P.3d 534 (2011).   So, does Apprendi  apply to a determination regarding restitution?  Courts around the country have been reluctant to so hold, either finding that restitution is not part of the criminal sentence or that Apprendi only applies to incarcerative sentences or incarcerative portions of sentences.

Recently, in Southern Union Co. v. United States, the SCOTUS soundly rejected the latter rationale, applying Apprendi to the imposition of criminal fines. In that case, the amount of the fine was tied to the number of days the statute was violated. The SCOTUS noted that "the salient [historical] question here is what role the jury played in prosecutions for offenses that did peg the amount of a fine to the determination of specified facts—often, the value of damaged or stolen property. Our review of state and federal decisions discloses that the predominant practice was for such facts to be alleged in the indictment and proved to the jury." 132 S.Ct at 2353 (emphasis added). The SCOTUS held that the district court's factual finding as to the number of noncompliant days violated Apprendi.

So, is restitution in Kansas pegged to a determination of specified facts?  In a very recent decision, State v. Hall, No. 102,297 (Kan. June 28, 2013), the KSC reminded us that determining restitution is very factual in nature:  “Determining the value of an aggrieved party’s loss raises an issue of fact.”  In addition, at a restitution is pegged to a “factual finding” of causation between the crime and the victim’s loss.
 
Is restitution part of the criminal sentence?  McDaniel says yes.  Does the amount of restitution pegged to specified factual determinations?  Hall says yes.  Does Apprendi  apply to such determinations?  Southern Union says yes.

So, Kansas practitioners should strongly consider making an Apprendi challenge whenever the state seeks restitution in a criminal case.