Splits Widened: Issues Concerning a District Court’s Failure to Set a Restitution Schedule Both During and After Imprisonment (Questions Below)

• Does a District Court’s Failure to Set a Restitution Schedule During Imprisonment Impermissibly Delegate Judicial Authority to the Executive?
• Is Failure to Set a Schedule After Release Plain Error?

Per United States v. Sawyer, 2008 WL 942653 (7th Cir. Apr. 9, 2008)

The facts underlying each of the three appeals are largely irrelevant to the legal issues presented. The three defendants were all ordered to pay restitution, and all are concededly unable to pay the full amount. They argue that 18 U.S.C. 3664(f)(2) required the district judges to set a schedule of restitution payments. In the case of one defendant, Duncan, the judge did set a schedule to take effect after his release from prison. For the other two defendants, Sawyer and Rodgers, no schedule at all was incorporated into the district courts' orders.

Duncan argues that the failure to specify a payment schedule during his time in prison impermissibly delegates a judicial task to the executive branch Bureau of Prisons. Chief Judge Easterbrook, on behalf of a unanimous panel, fails to see any delegation. The BOP’s authority over prison earnings is derived from statutory authority and not judicial delegation. “Prison earnings and other transactions concerning prison trust accounts are so completely within the Bureau of Prisons' control that it would be pointless for a judge to tell the convict how much to pay a month.” *5.

Chief Judge Easterbrook thus concludes that all repayment schedules, as a rule, should not begin until after defendants are released from prison. He recognizes, however, that the circuits are split on this issue. The CAs 2,3,6,7,9,10 all hold that the failure to set a repayment schedule for time in prison impermissibly delegates judicial power to the executive branch; only the CAs 4,5, and now 7 disagree.

With respect to defendants Sawyer and Rodgers, however, the panel holds that the failure to incorporate any repayment schedule was erroneous. The question remains, however, whether such mistake meets the plain error standard. In order to prove plain error, four elements must be met – there must be (1) an error, (2) that is clear or obvious, (3) that affects substantial rights, and (4) that would affect the fairness, integrity, or public reputation of judicial proceedings.

Chief Judge Easterbrook questions whether the failure to set a schedule at this time could affect the defendants’ substantial rights. Slow payment would not return a defendant to prison, the remedy for paying less than one is able would be the imposition of a schedule of minimum payments at the time such failure is noticed. The panel opinion continues to question how, even if the defendants’ substantial rights were affected, an order to repay what he owes could undermine the fairness, integrity, or public reputation of judicial proceedings. Indeed, setting a schedule that is too low could result in the defendant receiving a windfall – a result which would injure the fairness of judicial proceedings.

The panel therefore holds that failing to set a schedule of repayment is not plain error. The opinion again notes that the circuits are split on this issue. The CAs 2,3,4,6,10,11 all hold that this failure is plain error, while on the CA 5 and now 7 state that such failure is not necessarily plain error. The CA 1 also seems sympathetic to this view, holding that the failure to set a schedule for drug testing is not plain error. To reach its conclusion on this point, the panel had to overrule several previous Seventh Circuit precedents. This opinion was circulated to all Seventh Circuit judges, and not one called for rehearing en banc.