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Elkan Abramowitz and Jonathan Sack

Over the past 20 years, the Sixth Amendment right to a jury trial has been extended to sentencing. Beginning with Apprendi v. New Jersey, 530 U.S. 466 (2000), the U.S. Supreme Court has held that a criminal defendant may not be subjected to an increased term of imprisonment or a fine unless the facts that support the increase have been presented to a jury and proven beyond a reasonable doubt. In recent years, defendants have argued that the reasoning of Apprendi applies to restitution, which trial judges currently may impose based solely on post-conviction, judicial fact finding. While federal appellate courts have uniformly rejected efforts to extend Apprendi to restitution, in January 2019, two justices of the Supreme Court, Justices Gorsuch and Sotomayor, dissented from a denial of certiorari, maintaining that the Supreme Court should take up the issue. See Hester v. United States, 139 S. Ct. 509 (2019) (Gorsuch, J.).

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