Split Noted: Is Mandatory Restitution Criminal or Civil in Nature?

Per United States v. Bonner, 2008 WL 1701841, *4 (7th Cir. Apr. 14, 2008)

For seventeen years, the Bonners defrauded the government – receiving payments for non-existent medical problems and non-existent children. A jury convicted them for wire-fraud and theft of government property. The Bonners do not appeal their conviction, but only the restitution the district court judge ordered under the Mandatory Victims Restitution Act.

The Bonners contend that restitution is a criminal penalty, and therefore the fact of amount of restitution must be found by a jury beyond a reasonable doubt. The Seventh rejects this argument as it has prior precedent which dictates that restitution is, in fact, a civil remedy appended to a criminal sentence. It notes, however, that the majority of the circuits have held differently. The CAs 2,3,5,8,9,11,DC all hold that restitution is a criminal penalty; only the CAs 7,10 hold differently.

This distinction, however, has not made a difference in the end result. As far as my research reveals, no court in the majority school has applied Booker to find that a jury need find the fact of restitution beyond a reasonable doubt. The en banc Third Circuit opinion in United States v. Leahy, 438 F.3d 328 (2006), provides an excellent discussion of both points of view and reveals the sharp divide. Third Circuit Blog covered that opinion here.