NACDL board member and former Forfeiture Abuse Task Force co-chair David B. Smith's written testimony to the House Judiciary Committee Subcommittee on Crime, Terrorism, and Homeland Security regarding proposed changes to federal restitution laws that would allow pretrial restraint of assets to assist in paying potential future restitution.
Amicus curiae brief of the National Association of Criminal Defense Lawyers.
Argument: Allowing a sentencing court to enter a restitution order under the Mandatory Victims Restitution Act’s more than 90 days after sentencing, the time limit prescribed in 18 U.S.C. §3664(d)(5), deprives the defendant of important procedural protections, creates uncertainty as to timely appeal, and also negatively affects victims and the courts.
Motion for Leave to file amicus brief filed by the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (on petition for a writ of certiorari)
Argument: This case presents an important issue impacting defendants of all incomes convicted of a variety of crimes. The Tenth Circuit held that a sentencing court could not consider the degree to which a defendant’s “earning capacity” would allow him to pay restitution to the victims of his financial fraud when fashioning a sentence. This holding warrants review because it deepens a conflict of authority over whether district courts may sentence a defendant to probation or to a reduced prison term to enable that defendant to earn income to pay restitution and because the Tenth Circuit was wrong on the merits. This case presents an important questions regarding the broad discretion of sentencing judges. While Congress intended restitution be satisfied in every case to the fullest extent possible, the Tenth Circuit’s decision puts this goal at risk by refusing to allow sentencing courts to even consider a defendant’s capacity to pay restitution when imposing a sentence. Because of restitution’s importance within the federal criminal scheme, this Court should grant review to determine whether the capacity to make restitution payments is an appropriate sentencing consideration. This Court’s review also is necessary because the Tenth Circuit’s decision is in significant tension with the historical tradition of broad discretion in the information a court may consider when imposing a sentence.