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Judges and crime victims’ rights advocates are calling for new federal legislation that would give judges more discretion in crafting restitution awards. Under current federal law, restitution is allowed only for certain damages, such as medical expenses and lost wages. Judges now want to add consequential damages to the list, such as the lost time that victims suffer from due to having to deal with a crime, or attorney fees for someone who gets cheated in a fraud scheme. Adding momentum to the issue is recent action from the Judicial Conference of the United States, which in the fall formally endorsed the concept of expanded restitution. The Judicial Conference, which is the policymaking arm of the federal judiciary, stated that it supported “legislation that would authorize general restitution in any criminal case at the discretion of the judge when the circumstances of the case warrant it.” While no legislation has yet been formally introduced, the issue has set off an alarm among criminal defense lawyers and the plaintiffs’ bar. Both groups argue that consequential damages like “loss of time” are to be sought in the civil courts, not the criminal justice system. And critics add that allowing judges to consider such losses will only further clog the criminal courts and slow down trials. Points to civil system “If you mix the criminal and civil systems together, you’re creating something that is going to negatively impact the defendant’s right to a speedy trial,” said John Pendleton, who does both federal criminal defense work and represents crime victims in civil suits. “You’re going to increase litigation costs in criminal cases and increase the burden on criminal defense attorneys.” Pendleton of Dwyer Donovan & Pendleton in Portsmouth, N.H., said that expanding restitution in criminal cases could lead to months-long trials on damages, requiring public defenders to hire civil defense attorneys and costly experts. “If you want to get the victim back to where they were before the offense- that’s what we have the civil system for,” Pendleton said. But not all crime victims can afford the civil courts, countered Paul Cassell, a federal judge and law professor at the University of Utah who is pushing for more discretionary power in awarding restitution. “I think we don’t have sufficient discretion to do justice with all the cases in front of us,” Cassell said. “I collect a number of cases in which everyone says, ‘Of course there should be restitution.’ But it doesn’t fit into our cases.” Restitution overturned Cassell, who testified before the U.S. Sentencing Commission last year on expanding restitution, cited numerous cases in which courts of appeals have overturned restitution awards because statutes failed to authorize them, even though district judges thought they were appropriate. One such case involved an identity theft victim who sought reimbursement for the time she spent clearing her credit. The district court ordered $30,000 in restitution, but the 7th U.S. Circuit Court of Appeals reversed the order in 2005, holding that it was unclear if the losses were appropriate under federal law. U.S. v. Havens, 424 F.3d 535 (7th Cir. 2005). Cassell had a similar case on his hands last year when he wanted to award restitution to identity theft victims who lost hours of time trying to clear up their credit, costing them time away from their children and their daily lives. “I thought it would be fair to order restitution for the lost time the victims suffered in responding to the defendant’s crime. Unfortunately, as the government explained at the hearing, current law does not allow this,” Cassell said during his testimony. But the law should permit judges to make such calls about restitution, said Doug Beloof, a law professor at Lewis & Clark Law School and director of the National Crime Victim Law Institute in Portland, Ore. Beloof discredited claims that allowing judges to consider consequential damages in criminal trials would clog up the courts with hearings. He said such decisions would require only a short hearing, which could be held during sentencing proceedings. “Paying for a crime means not just going to prison for the crime, but paying back the victim the damages that were caused because of the crime. The criminal justice system is set out to achieve that,” Beloof said.

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