Time limits on restitution awards

By Anna Christensen
on Apr 19, 2010 at 9:52 pm

Below, Carl Cecere of Akin Gump previews tomorrow’s oral argument in Dolan v. United States.  Check the Dolan (09-367) SCOTUSwiki page for additional updates.  [NOTE: Akin Gump and Howe & Russell represent the petitioner in this case, but Carl was not involved in the proceedings.]

Tomorrow the Court will hear argument in Dolan v. United States, No. 09-367, involving the timing of restitution awards under the Mandatory Victims Restitution Act of 1996 (the “MVRA”).  When a defendant is convicted of a crime of violence, the MVRA provides – in Section 3663A(d) – that the district court “shall order” the defendant to make restitution “to the victim of the offense.”  Section 3663A(a)(1) further provides that a restitution award should normally made when the defendant is sentenced; however, under Section 3664(d)(5), if the prosecution makes a timely request, the district court can reserve the restitution award for a later date, “not to exceed 90 days after sentencing.”  The case presents the question whether a district court retains authority to award restitution after the ninety-day period expires.

In late 2006, petitioner Brian Dolan got into a fight with an acquaintance on an Indian reservation in southeastern New Mexico.  The fight resulted in a federal assault charge for Dolan, to which he pled guilty, and serious injuries to the victim, who was treated by the Indian Health Service at the government’s expense.  Although the probation office and the government’s victim advocate raised the prospect of having Dolan pay restitution, information regarding the scope of restitution was not available before Dolan was to be sentenced.  On the date of Dolan’s sentencing, July 30, 2007, the district court therefore sentenced Dolan to twenty-one months in prison, but left “the question of restitution open-ended because we don’t have a good number at this point.”

A complete accounting of the victim’s medical bills was not submitted until October 5, 2007, sixty-seven days after Dolan was sentenced.  And the district court did not order restitution until January 28, 2008, ninety-two days after expiration of Section 3664(d)(5)’s ninety-day window.  In an appeal to the Tenth Circuit, Dolan challenged the district court’s authority to enter the award after the ninety-day window had passed, but the court of appeals affirmed the district court’s restitution award.

In interpreting Section 3664(d)(5), the parties’ basic positions are simple enough.  Dolan believes that Congress could not have been clearer:  because the statute provides (in Section 3664(d)(5)) that the district court “shall award” restitution “not to exceed 90 days after sentencing,” the district court lacks the power to do otherwise.  The government, on the other hand, notes that Section 3664(d)(6) does not impose any penalty for the failure to make a timely restitution award, and it cautions that since Congress declined to impose any penalty, the courts should not impose one on themselves.  The parties thus present a straightforward, if unappealing, question to the Court.  Either the ninety-day deadline in Section 3664(d)(5) is essential and mandatory, meaning victims’ rights are sacrificed, or it is completely meaningless and inconsequential and in no way constrains the government.

Beyond these simple, but conflicting, textual readings, he parties’ positions do not really begin to take shape until each view is considered separately within the larger context of restitution awards.  Dolan urges the Court to treat Section 3664(d)(5)’s ninety-day period as a mandatory “claims processing statute,” akin to the Federal Rules of Criminal Procedure, that creates limitations on a party’s ability to obtain relief in court.  This view, Dolan contends, is necessary to protect both victims and defendants.  He explains that interminable periods between sentencing and restitution would harm defendants by allowing evidence to become stale and by forcing them to compile evidence to rebut their restitution awards from prison.  Dolan also argues that an extension of the deadline past the ninety-day period also can harm victims by encouraging government officials to drag their feet, depriving those victims both of financial recompense and a sense of closure.

The government counters that Dolan’s interpretation actually subverts the needs of victims to those of perpetrators.  Treating the deadline as mandatory, the government contends, would sacrifice the victim’s right to compensation whenever the government or the district court was dilatory in its duties with regard to restitution – a result that would be contrary to Congress’s intent that the needs of victims should override those of defendants in the restitutionary process.  The government finds support for this proposition in its reading of the MVRA’s legislative history—a reading that Dolan heavily contests.  According to the government, Congress codified this preference for victim restitution in Section 3663A of the MVRA, which requires the district court to award restitution “[n]otwithstanding any other provision of law”—i.e., notwithstanding the statutory deadline.  Thus, the ninety-day deadline must accommodate this overriding prerogative.  This means that, to the government, the deadline might encourage government functionaries to avoid dragging their feet on restitutionary awards, by mandamus if necessary, it should never deprive the victim of being made whole.

Both parties also explore the implications of the concept of finality on their relative positions.  To Dolan, rendering the ninety-day deadline mandatory would provide a finite point at which a defendant’s sentence (which includes any award of restitution) becomes final.  Were it otherwise, the defendant would have two unpalatable choices for his appeal.  First, he might wait to appeal his sentence until a restitution award is finally entered, which might not occur until the prisoner had almost served his entire sentence (potentially raising a very serious due process issue).  Alternatively, he would have to pursue piecemeal appeals of the sentence and restitution, which would give rise to the oxymoronic proposition of appeals from two separate “final” judgments, and also raise double jeopardy concerns.  The government in turn concedes that such piecemeal proceedings might be necessary in a protracted restitution process, but it notes that the danger of piecemeal appeals can easily be resolved by consolidating the appeals.

The parties also spar briefly on the applicability of the rule of lenity, which requires that ambiguities in interpreting criminal statutes be resolved in favor of a criminal defendant.  Dolan suggests that the rule of lenity should trump even the legislative history cited by the government as a basis to resolve any ambiguity regarding the nature of the ninety-day deadline.  The government retorts that, as a “procedural regulation,” rather than a criminal statute, the rule of lenity should not apply.

Although the interpretive arguments outlined above are interesting and important, the crucial battle in this case is likely to involve application of harmless-error analysis.  The government argues that the delay in awarding restitution did not affect the amount of restitution awarded in this case and did not deprive the petitioner of notice.  Therefore, according to the government, the imposition of the restitution award, even coming late, did not harm Dolan.

Dolan raises three separate arguments in reply.  First, he argues that harm should be presumed because “illegal sentences” automatically affect a defendant’s substantial rights.  The government responds by noting a distinction between sentences that are “illegal” because they are substantively excessive and those that might be merely procedurally improper and argues that harmless-error analysis must apply to the latter, even if it does not apply to the former.  Second, Dolan compares the deadlines in this case to statutes of limitations, Speedy Trial Act violations, or violations of the time periods in the Federal Rules of Criminal Procedure—each of which is a statutorily imposed deadline, the violation of which is presumptively harmful.  The government responds that the ninety-day period here differs from such deadlines because it was not meant to protect the defendant, and it is a deadline imposed on the court, rather than a party.  Third and finally, Dolan argues that the tardy restitution award here cannot be compared with the award that would have been made if the ninety-day deadline had not been violated because there were actually two errors in this case.  First the district court failed to award restitution within the ninety-day period, but it then compounded the first error by awarding restitution late.  Because the government did not protest the first error, Dolan continues, it cannot now argue that restitution would have been awarded if the district court had not been tardy.  To the contrary, the tardy restitution award was harmful because, if it had not been entered, there would not have been any restitution award at all.