Judge Cassell’s continuing contributions
Utah District Judge Paul Cassell probably had already secured a place in my Sentencing Judge’s Hall of Fame even before this week. But his work just yesterday alone highlights his versatility as the sentencing plate.
In addition to issuing his thoughtful and compelling opinion about mandatory minimums in Angelos (basics here, commentary forthcoming), yesterday Judge Cassell also issued an extended and very thoughtful opinion about Blakely‘s applicability to restitution awards in US v. Visinaiz, No. 2:03-CR-00701 (D. Utah Nov. 16, 2004). I will need some time to consume and analyze this opinion fully, but here’s the essentials of Visinaiz (which can be downloaded below):
The court next concludes that the Sixth Amendment right to a jury trial, as expansively interpreted in Blakely, does not extend to restitution awards. Two separate justifications support this conclusion. First, restitution is not a penalty and therefore is simply not covered by the Sixth Amendment. Second, as a matter of historical practice dating to well before the drafting of the Constitution, restitution has traditionally been determined by the judge, not the jury. In light of this history, the Sixth Amendment should not be read as creating a need for jury fact-finding on restitution issues.