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U.S. High Court Backs N.M. Restitution Ruling

By Scott Sandlin
Journal Staff Writer
          The U.S. Supreme Court ruled 5-4 on Monday that a federal district judge in New Mexico correctly ordered a defendant to pay restitution for treatment of a beating victim, even though it was imposed well past the deadline set by Congress.
        Although the opinion dealt with a fairly technical point of sentencing law, the issues drew friend-of-the-court briefs from the National Association of Criminal Defense Lawyers on one side and the National Crime Victim Law Institute on the other.
        "The possibility that restitution might be awarded in this case means that the circle of direct influence includes more than the usual suspects in a criminal appeal," wrote SCOTUSblog.com, which tracks high court jurisprudence, after oral argument in April.
        Monday's decision leaves in place a decision by U.S. District Judge Robert Brack of Las Cruces, who in August 2007 ordered Brian Russell Dolan, a Mescalero Apache, to serve 21 months in prison for the assault on a fellow tribal member he picked up hitchhiking about a year earlier. At sentencing, Brack said restitution was appropriate, but didn't specify an amount.
        A presentence report said the U.S. Indian Health Service had not responded to repeated requests for the agency's costs to treat the victim, so Brack left blank the space left in the judgment for restitution.
        An addendum prepared months later set medical expenses at $105,000 — restitution Brack imposed, payable at $250 a month, in April 2008.
        Dolan appealed because restitution was imposed more than 90 days after his sentence, despite the requirements of the Mandatory Victims Restitution Act. The 10th Circuit Court of Appeals affirmed Brack, and Dolan turned to the high court.
        "The outcome in this case was an illegal sentence, entered after the time period provided by statute," said the brief for Dolan prepared by Albuquerque attorney Sara Sanchez and others.
        University of New Mexico professor Barbara Bergman argued in a brief on behalf of criminal defense attorneys that upholding Brack's order deprived defendants of procedural protections and imposed burdens on both victims and courts.
        "The 90-day deadline protects defendants against the loss or erosion of evidence necessary to contest the government's restitution demand," the NACDL brief said. Commenting on the court's ruling Monday, the group said dissenters were "right to reject the majority's approval of 'fill in th[e] blank' sentencing."
        Victims' rights advocates, however, said missing the 90-day "claims processing rule ... cannot strip crime victims of their entitlement to restitution."
        The crime victims' group complained that both Dolan's attorneys and prosecutors "recount the facts in this case as though (it) presents a mere institutional dispute about who will cover some medical bills. The rule of law the Court announces in this case will, however, have tremendous impact on the lives of individual crime victims around the country."
        Dolan's victim suffered head injuries, broken ribs and a broken nose, forcing him to breathe through a ventilator. The district court never ordered payment of $7,000 in losses to the direct victim because of his inability to work, their brief said.
        The Supreme Court ruled that a district court retains power to order restitution, even past the deadline.
        Writing for the majority, Justice Stephen Breyer noted that the Mandatory Victim Restitution Act "places primary weight on, and emphasizes the importance of, imposing restitution upon those convicted of certain federal crimes." The 90-day deadline, he wrote, was set up "primarily to help crime victims secure prompt restitution, not to provide defendants with certainty as to the amount of their liability."
       





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