Purported SCOTUS originalists and liberals, showing yet again that they are faint-hearted, refuse to consider extending jury trial rights to restitution punishments

I noted in this post the array of per curiam rulings and statements that the Supreme Court released today to get 2019 off to an interesting criminal justice start.  Regular readers will not be surprised to learn that one particular decision, namely the decision to deny certiorari in Hester v. US, has me revved up.  Hester involves a claim that the Sixth Amendment jury trial right recognized in Apprendi, Blakely, Booker and Southern Union is applicable to cases in which findings are essential for the imposition of criminal restitution.  Dissenting from the denial of cert in a this lovely little opinion, Justice Gorsuch explains why this is only logical and is consistent with an originalist approach to the Constitution:

[T]he government argues that the Sixth Amendment doesn’t apply to restitution orders because the amount of restitution is dictated only by the extent of the victim’s loss and thus has no “statutory maximum.”  But the government’s argument misunderstands the teaching of our cases.  We’ve used the term “statutory maximum” to refer to the harshest sentence the law allows a court to impose based on facts a jury has found or the defendant has admitted.  Blakely v. Washington, 542 U.S. 296, 303 (2004).  In that sense, the statutory maximum for restitution is usually zero, because a court can’t award any restitution without finding additional facts about the victim’s loss.  And just as a jury must find any facts necessary to authorize a steeper prison sentence or fine, it would seem to follow that a jury must find any facts necessary to support a (nonzero) restitution order.

The government is not without a backup argument, but it appears to bear problems of its own.  The government suggests that the Sixth Amendment doesn’t apply to restitution orders because restitution isn’t a criminal penalty, only a civil remedy that “compensates victims for [their] economic losses.”  Brief in Opposition 8 (internal quotation marks omitted).  But the Sixth Amendment’s jury trial right expressly applies “[i]n all criminal prosecutions,” and the government concedes that “restitution is imposed as part of a defendant’s criminal conviction.”  Ibid.  Federal statutes, too, describe restitution as a “penalty” imposed on the defendant as part of his criminal sentence, as do our cases.  18 U.S.C. §§ 3663(a)(1)(A), 3663A(a)(1), 3572(d)(1); see Paroline v. United States, 572 U.S. 434, 456 (2014); Pasquantino v. United States, 544 U.S. 349, 365 (2005).  Besides, if restitution really fell beyond the reach of the Sixth Amendment’s protections in criminal prosecutions, we would then have to consider the Seventh Amendment and its independent protection of the right to a jury trial in civil cases.

If the government’s arguments appear less than convincing, maybe it’s because they’re difficult to reconcile with the Constitution’s original meaning.  The Sixth Amendment was understood as preserving the “‘historical role of the jury at common law.’” Southern Union, 567 U. S., at 353.  And as long ago as the time of Henry VIII, an English statute entitling victims to the restitution of stolen goods allowed courts to order the return only of those goods mentioned in the indictment and found stolen by a jury.  1 J. Chitty, Criminal Law 817–820 (2d ed. 1816); 1 M. Hale, Pleas of the Crown 545 (1736).  In America, too, courts held that in prosecutions for larceny, the jury usually had to find the value of the stolen property before restitution to the victim could be ordered.  See, e.g., Schoonover v. State, 17 Ohio St. 294 (1867); Jones v. State, 13 Ala. 153 (1848); State v. Somerville, 21 Me. 20 (1842); Commonwealth v. Smith, 1 Mass. 245 (1804).  See also Barta, Guarding the Rights of the Accused and Accuser: The Jury’s Role in Awarding Criminal Restitution Under the Sixth Amendment, 51 Am. Crim. L. Rev. 463, 472–476 (2014).  And it’s hard to see why the right to a jury trial should mean less to the people today than it did to those at the time of the Sixth and Seventh Amendments’ adoption.

Students of the Apprendi-Blakely line of cases have long known that there were not very good arguments to preclude the application of jury trial rights to criminal restitution awards, and those arguments got even weaker when the Supreme Court ruled in Southern Union that the jury trial right also applied to findings needed to impose criminal fines.  And notably, Southern Union was a 6-3 ruling with only the traditional Apprendi haters, Justices Alito, Breyer and Kennedy, in dissent.

So why does the jury trial still mean less to the people today facing restitution punishments than it did to those at the time of the Sixth and Seventh Amendments’ adoption?  The only answer I can provide is hinted in the title of post.  Supposed SCOTUS originalists like Chief Justice Roberts and Justices Thomas and Kavanaugh apparently do not want to here follow originalist principles to what would appear to be their logical conclusion.  Supposed SCOTUS liberals like Justices Ginsburg and Kagan do not want to here protect a certain type of right of a certain type of criminal defendant. (Justice Sotomayor, who never shrinks from following constitutional rights wherever she thinks they must extend, joined Justice Gorsuch's dissent here). 

When push comes to shove — or rather, when criminal defendants make a serious claim that a serious constitutional right should be given serious meaning — still too many justices seem to become faint-hearted in the application of their purported principles and commitments.  Drat.