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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 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 endorsed the concept of expanded restitution. The Judicial Conference is the policymaking arm of the federal judiciary. While no legislation has yet been introduced, the issue has set off an alarm among criminal defense lawyers and the plaintiffs’ bar. Both groups argue that damages like “loss of time” are to be sought in civil, not criminal, courts. And critics add that allowing judges to consider such losses will only further clog the criminal courts and slow down trials. John Pendleton of Dwyer Donovan & Pendleton in Portsmouth, N.H., who does federal criminal defense work and represents crime victims in civil suits, said that expanding restitution in criminal cases could lead to months-long trials on damages, requiring public defenders to hire civil defense attorneys. “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. Insufficient discretion? 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.” 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.

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