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Enacting landmark federal legislation that created new rights for crime victims was the easy part; figuring out how to enforce those rights may be another story. Since the signing of the Justice For All Act on Oct. 30, 2004, a handful of federal cases around the country have exposed ticklish problems that may be in store for judges balancing the rights of victims against constitutional protections for defendants. The new law captured the most public attention for bolstering the use of DNA testing technology, but it also provides powerful new rights to victims, including: the right to reasonable notice of court proceedings; the right to be heard on issues of release, plea, sentencing or parole; and a right to “full and timely” restitution. To carry out the new law’s provisions, the U.S. Department of Justice must wrestle with the administrative nightmare of trying to notify the thousands of people who may fall victim to just one Ponzi scheme without creating untenable court delays. Postage alone for notification in mass fraud cases could run into thousands of dollars. Scott McGregor, the U.S. attorney for the Eastern District of California, said his office is working through one Internet Ponzi fraud that had an estimated 15,000 victims. He uses a phone-in system to provide updates for victims on court schedules. “You do your best to ID victims but you can’t be 100% sure,” McGregor said. Newly released guidelines from the U.S. attorney general’s office suggest that prosecutors keep in touch with victims via the Internet, automated telephone systems and newspaper ads. The law also requires discipline for prosecutors who fail to comply with the new rules, the U.S. attorney for the Southern District of Indiana, Susan W. Brooks, told a gathering of 7th Circuit judges last month. In Iowa, a federal judge presiding over the first death penalty trial in the state in 40 years pledged to seal a jury verdict for at least four hours to allow the victim’s family time to drive to the courthouse to hear the outcome. He based the decision on the new law giving victims the right to be present. “We were sort of at the cutting edge and judges didn’t know about it,” said Assistant U.S. Attorney C.J. Williams in Cedar Rapids, Iowa. Issue of restitution Restitution has become a hot issue among victims’ rights groups. “One of the things we are looking at is the vast amount of uncollected criminal debt,” said Susan Howley, director of public policy for the National Center for the Victims of Crime. In January, the Government Accountability Office (GAO) reported that uncollected criminal debt more than quadrupled from 1996 to 2002, rising to $25 billion from $6 billion. That growth spurt started with passage of the Mandatory Victims Restitution Act in 1996. Two-thirds of that debt sprang from white-collar financial fraud, according to the GAO, the investigative arm of Congress on matters of public funding. The push to collect more unpaid restitution comes just as judges can be expected to impose more restitution orders on defendants under the 2004 act. Some of the thousands of victims of John and Timothy Rigas, former owners of Adelphia Communications Corp. who were convicted for fraud last year, objected to a settlement that included creation of a $715 million fund to compensate fraud victims. Victims feared it would account for only a fraction of their losses. The government argued successfully that there are so many victims it would be impossible to identify and notify each personally. Calculating individual losses would take months, the prosecutors maintained. On June 3, the 2d U.S. Circuit Court of Appeals, in the first federal circuit court interpretation of the new act, latched on to a provision that allows judges to relax the notification requirement if the number of victims makes it impractical. In re W.R. Huff Asset Management Co. v. Rigas, No. 05-2619. “One could argue that the 2d Circuit created a split with itself,” said a creditor’s attorney in the Adelphia case. In an earlier decision in a fraud prosecution, the attorney said, “the government prepared a report with 1,700 pages of victims, and the 2d Circuit said it was still practical to provide restitution.” The potentially conflicting case was U.S. v. Catoggio, 326 F.3d 323 (2003). The trial judge ordered $80 million in restitution in the stock fraud and racketeering case. Punishment or compensation Already the question of whether restitution amounts to criminal punishment or simply compensation for victims has spawned an internal split of opinion in the 10th Circuit and a variety of holdings in other circuit courts. The answer is critical. If restitution is criminal punishment rather than compensation, it could mean that the U.S. Supreme Court’s recent Booker decision might come into play, requiring juries, rather than judges, to set restitution conditions. Under U.S. v. Booker, 125 S. Ct. 738 (Jan. 12, 2005), juries must serve as the finders of facts regarding anything that might increase a criminal punishment. Judge Stephen Anderson of the 10th Circuit said in U.S. v. Garcia-Castillo, 127 Fed. Appx. 385 (Feb. 11, 2005), that restitution “is not criminal punishment,” rejecting a prior panel’s assertion in U.S. v. Wooten, 377 F.3d 1134 (2004), that “courts commonly regard . . . restitution orders as criminal penalties.” Anderson, however, did acknowledge that “Whether restitution is criminal punishment and whether restitution is subject to Apprendi, Blakely and Booker are by no means settled questions in courts across the country.” The 7th Circuit describes restitution as a “classic civil remedy,” while the 8th and 6th circuits call it a criminal penalty. And the distinction could force criminal defense attorneys into the analytical role usually held by insurance defense counsel in civil cases, which is what happened in a recent Utah murder case. U.S. District Judge Paul G. Cassell of Salt Lake City held in U.S. v. Visinaiz, 344 F. Supp. 2d 1310 (2004), that “In homicide cases, an award of restitution for lost income is required by the [Mandatory Victim Restitution Act]. The fact-finding for imposing a restitution award need not be done by the jury.” Cruz Joaquin Visinaiz killed his friend, a 68-year-old Native American woman with a history of alcoholism. Cassell sentenced Visinaiz to nearly 22 years in prison and ordered him to pay $107,000 for the victim’s future wages. ‘De facto damages’ Theodore Weckel, Visinaiz’s attorney in Salt Lake City, said the use of a mandatory restitution for victims who can’t afford to sue civilly amounts to “a de facto way to award money damages. I thought it was an end run around civil courts,” he said. Weckel said criminal defense lawyers would find themselves in the insurance-defense position when arguing against restitution orders. Weckel’s own papers pointed to the victim’s age, obesity and alcoholism to show a reduced life expectancy to decrease the potential future-wage claim. He also pointed out that she was divorced and her children were grown, eliminating their claim to survivor benefits. In his decision, Cassell rejected the defense argument and produced a detailed analysis of restitution as nonpunitive, saying it has “traditionally been viewed as an equitable device for restoring victims to the position they had occupied prior to the wrongdoer’s actions.” A burglar is not punished if police return the stolen television to its owner nor is a bank robber punished if the bag of loot goes back to the bank, Cassell said. In violent crimes such as rape or murder, “so long as restitution is pegged to easily-ascertainable monetary losses such as medical expenses or future lost income, it still makes little sense to characterize restitution as punishment,” he wrote. The case is currently on appeal to the 10th Circuit. Howley, whose crime victims’ group this week hosts the first-ever national conference designed for victim service providers, said that every state has some laws protecting rights for crime victims, and 32 states have gone so far as putting the protections in their state constitutions. About a third of the states include restitution, although not all are mandatory, she said.

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