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Justice Alito versus Justices Gorsuch and Sotomayor on Original Meaning and Restitution
Michael Ramsey

On Monday the Supreme Court denied review in Hester v. United States, which posed the question:

Whether the rule of Apprendi v. New Jersey–which held that any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt–should apply to the imposition of criminal restitution.

Justice Gorsuch, joined by Justice Sotomayor, dissented from denial of review, appealing in part to original meaning:

The ruling before us is not only important, it seems doubtful. The Ninth Circuit itself has conceded that allowing judges, rather than juries, to decide the facts necessary to support restitution orders isn’t “well harmonized” with this Court’s Sixth Amendment decisions. United States v. Green, 722 F. 3d 1146, 1151 (2013). Judges in other circuits have made the same point in similar cases. See United States v. Leahy, 438 F. 3d 328, 343–344 (CA3 2006) (en banc) (McKee, J., concurring in part and dissenting in part); United States v. Carruth, 418 F. 3d 900, 905–906 (CA8 2005) (Bye, J., dissenting).

Nor does the government’s defense of the judgment below dispel these concerns. . . . 

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.

Justice Alito responded, concurring in the denial of review: 

The argument that the Sixth Amendment, as originally understood, requires a jury to find the facts supporting an
order of restitution depends upon the proposition that the Sixth Amendment requires a jury to find the facts on
which a sentence of imprisonment is based. That latter proposition is supported by decisions of this Court, see United States v. Booker, 543 U. S. 220, 230–232 (2005); Apprendi v. New Jersey, 530 U. S. 466, 478 (2000), but it represents a questionable interpretation of the original meaning of the Sixth Amendment, Gall v. United States, 552 U. S. 38, 64–66 (2007) (ALITO, J., dissenting). Unless the Court is willing to reconsider that interpretation, fidelity to original meaning counsels against further extension of these suspect precedents.