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`1
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` Cite as: 586 U. S. ____ (2019)
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` ALITO, J., concurring
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`SUPREME COURT OF THE UNITED STATES
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` JOSHUA JOHN HESTER, ET AL. v. UNITED STATES
`ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
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`STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
`No. 17–9082. Decided January 7, 2019
`The petition for a writ of certiorari is denied.
`JUSTICE ALITO, concurring in the denial of certiorari.
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`The argument that the Sixth Amendment, as originally
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`understood, requires a jury to find the facts supporting an
`order of restitution depends upon the proposition that the
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`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
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`United States v. Booker, 543 U. S. 220, 230–232 (2005);
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`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,
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`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 ex-
`tension of these suspect precedents.
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`1
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` Cite as: 586 U. S. ____ (2019)
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` GORSUCH, J., dissenting
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`SUPREME COURT OF THE UNITED STATES
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` JOSHUA JOHN HESTER, ET AL. v. UNITED STATES
`ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
`
`STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
`No. 17–9082. Decided January 7, 2019
` JUSTICE GORSUCH, with whom JUSTICE SOTOMAYOR
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`joins, dissenting from the denial of certiorari.
`If you’re charged with a crime, the Sixth Amendment
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`guarantees you the right to a jury trial. From this, it
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`follows that the prosecutor must prove to a jury all of the
`facts legally necessary to support your term of incarcera-
`tion. Apprendi v. New Jersey, 530 U. S. 466 (2000). Nei-
`ther is this rule limited to prison time. If a court orders
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`you to pay a fine to the government, a jury must also find
`all the facts necessary to justify that punishment too.
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`Southern Union Co. v. United States, 567 U. S. 343 (2012).
`But what if instead the court orders you to pay restitu-
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`tion to victims? Must a jury find all the facts needed to
`justify a restitution order as well? That’s the question
`presented in this case. After the defendants pleaded
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`guilty to certain financial crimes, the district court held a
`hearing to determine their victims’ losses. In the end and
`based on its own factual findings, the court ordered the
`defendants to pay $329,767 in restitution. The Ninth
`Circuit affirmed, agreeing with the government that the
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`facts supporting a restitution order can be found by a
`judge rather than a jury.
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`Respectfully, I believe this case is worthy of our review.
`Restitution plays an increasing role in federal criminal
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`sentencing today. Before the passage of the Victim and
`Witness Protection Act of 1982, 96 Stat. 1248, and the
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`Mandatory Victims Restitution Act of 1996, 110 Stat.
`1227, restitution orders were comparatively rare. But
`from 2014 to 2016 alone, federal courts sentenced 33,158
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`2
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` HESTER v. UNITED STATES
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` GORSUCH, J., dissenting
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`defendants to pay $33.9 billion in restitution. GAO, G.
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`Goodwin, Federal Criminal Restitution 16 (GAO–18–203,
`2018). And between 1996 and 2016, the amount of unpaid
`federal criminal restitution rose from less than $6 billion
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`to more than $110 billion. GAO, G. Goodwin, Federal
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`Criminal Restitution 14 (GAO–18–115, 2017); Dept. of
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`Justice, C. DiBattiste, U. S. Attorneys Annual Statistical
`Report 79–80 (1996) (Tables 12A and 12B). The effects of
`restitution orders, too, can be profound. Failure or inabil-
`ity to pay restitution can result in suspension of the right
`to vote, continued court supervision, or even reincarcera-
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`tion. Lollar, What Is Criminal Restitution? 100 Iowa
`L. Rev. 93, 123–129 (2014).
`
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`The ruling before us is not only important, it seems
`doubtful. The Ninth Circuit itself has conceded that al-
`lowing judges, rather than juries, to decide the facts
`necessary to support restitution orders
`isn’t “well-
`harmonized” with this Court’s Sixth Amendment deci-
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`sions. 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,
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`343–344 (CA3 2006) (en banc) (McKee, J., concurring in
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`part and dissenting in part); United States v. Carruth, 418
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`F. 3d 900, 905–906 (CA8 2005) (Bye, J., dissenting).
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`Nor does the government’s defense of the judgment
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`below dispel these concerns. This Court has held that the
`Sixth Amendment requires a jury to find any fact that
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`triggers an increase in a defendant’s “statutory maximum”
`sentence. Apprendi, 530 U. S., at 490. Seizing on this
`language, the government argues that the Sixth Amend-
`ment doesn’t apply to restitution orders because the
`amount of restitution is dictated only by the extent of the
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`victim’s loss and thus has no “statutory maximum.” But
`the government’s argument misunderstands the teaching
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`of our cases. We’ve used the term “statutory maximum” to
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`refer to the harshest sentence the law allows a court to
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`3
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` Cite as: 586 U. S. ____ (2019)
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` GORSUCH, J., dissenting
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`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 restitu-
`tion is usually zero, because a court can’t award any resti-
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`tution 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
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`to follow that a jury must find any facts necessary to
`support a (nonzero) restitution order.
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`The government is not without a backup argument, but
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`it appears to bear problems of its own. The government
`suggests that the Sixth Amendment doesn’t apply to resti-
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`tution orders because restitution isn’t a criminal penalty,
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`only a civil remedy that “compensates victims for [their]
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`economic losses.” Brief in Opposition 8 (internal quotation
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`marks omitted). But the Sixth Amendment’s jury trial
`right expressly applies “[i]n all criminal prosecutions,” and
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`the government concedes that “restitution is imposed as
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`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
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`our cases.
` 18 U. S. C. §§3663(a)(1)(A), 3663A(a)(1),
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`3572(d)(1); see Paroline v. United States, 572 U. S. 434,
`456 (2014); Pasquantino v. United States, 544 U. S. 349,
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`365 (2005). Besides, if restitution really fell beyond the
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`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.
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`If the government’s arguments appear less than con-
`vincing, maybe it’s because they’re difficult to reconcile
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`with the Constitution’s original meaning. The Sixth
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`Amendment was understood as preserving the “‘historical
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`role of the jury at common law.’” Southern Union, 567
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`U. S., at 353. And as long ago as the time of Henry VIII,
`an English statute entitling victims to the restitution of
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`4
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` HESTER v. UNITED STATES
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` GORSUCH, J., dissenting
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`stolen goods allowed courts to order the return only of
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`those goods mentioned in the indictment and found stolen
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`by a jury. 1 J. Chitty, Criminal Law 817–820 (2d ed.
`1816); 1 M. Hale, Pleas of the Crown 545 (1736). In Amer-
`ica, 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
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`the Sixth Amendment, 51 Am. Crim. L. Rev. 463, 472–476
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`(2014). And it’s hard to see why the right to a jury trial
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`should mean less to the people today than it did to
`those at the time of the Sixth and Seventh Amendments’
`adoption.
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`Respectfully, I would grant the petition for review.
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