Court upholds restitution order made after ninety-day deadline
DISCLAIMER: Akin Gump and Howe & Russell represented the petitioner in this case, but I was not involved in the proceedings.
The Mandatory Victims Restitution Act of 1996 (“MVRA”) provides that a court “shall order” particular defendants to make restitution to their victims. Under 18 U.S.C. § 3664(d)(5), "if the victim's losses are not ascertainable by the date that is 10 days prior to sentencing," the court "shall set a date for the final determination of the victim's losses, not to exceed 90 days after sentencing." On Monday, in Dolan v. United States (No. 09-367), the Court held "“ by a vote of five to four "“ that even after the ninety-day deadline has passed, a sentencing court "retains the power to order restitution"”at least wherethe sentencing court made clear prior to the deadline's expiration that it would order restitution, leaving openonly the amount."
Justice Breyer wrote the opinion of the Court, which was joined by Justices Thomas, Ginsburg, Alito, and Sotomayor. Because Section 3664(d)(5) does not specify a consequence for missing the ninety-day deadline, the Court sought to classify the deadline as one of three types: (1) a "jurisdictional" limitation, which absolutely prohibits an action after the deadline has passed; (2) a "claims processing" rule, which regulates the "timing of motions or claims"; or (3) a legally enforceable, "time-related directive" that "does not deprive a judge of the power to take the action to which the deadline applies if the deadline is missed."
Based on "the language, the context, and the purposes of the statute," the Court concluded that the ninety-day deadline fell into the third category. First, the Court explained, when a statute leaves unspecified the consequence of a timing-provision violation, federal courts do not ordinarily "impose their own coercive sanction." The statute's use of the word "shall," the Court continued, does not require a contrary practice. Second, the Court emphasized that the statute was primarily intended to advance the victim's interest in restitution: it provides that a court "shall" order restitution regardless of the defendant's economic circumstances. Third, the ninety-day limit is intended primarily to benefit the victim, rather than provide certainty to the defendant. Fourth, if a judge who missed the deadline could not order restitution, crime victims "“ "who likely bear no responsibility to the deadline's being missed and whom the statute also seeks to benefit" "“ would likely suffer. Fifth, the Court reasoned, it had "previously interpreted similar statutes" "“ such as the Bail Reform Act, in United States v. Montalvo-Murillo (1990) "“ "similarly." Sixth, and finally, the defendant can often mitigate the possible harm threatened by a missed deadline by "simply tell[ing] the court," which "will then likely set a timely hearing or take other statutorily required action."
The Court rejected Dolan's argument regarding the harm that might flow from a missed deadline, and in particular his claim that a delay might postpone, for more than ninety days, his ability to appeal his sentence. But although it noted "strong arguments [that] favor the appealability of the initial judgment irrespective of the delay in determining the restitution amount," it ultimately declined to decide whether a sentence was sufficiently final so as to be appealable when the amount of restitution was left open.
In an opinion joined by Justices Stevens, Scalia, and Kennedy, the Chief Justice dissented. In his view, Section 3664(d)(5) is a "limited exception" to the general rule that a sentence may not be modified once it is imposed. Because the sentencing judge in this case exceeded the ninety-day limit established in Section 3664(d)(5), the otherwise-applicable general rule controls. The Court's decision to the contrary, the dissent contends, rests on "a series of irrelevancies that cannot trump the clear statutory text."