The Cost of Denying Access to Habeas Corpus Review

What happens when one person is wholly responsible for another’s fate? In Florida, Paul Howell will be executed by the state without having had his case reviewed in full by the federal court because one of his prior attorneys missed a filing deadline. This means that Mr. Howell will be denied habeas corpus, what was once referred to as “the great writ”. The purpose of the great writ is to right wrongs -  not by serving the state - but by protecting individual liberties from the reckless actions of the government.

The writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action. Its pre-eminent role is recognized by the admonition in the Constitution that: ‘The Privilege of the Writ of Habeas Corpus shall not be suspended." U.S.Const., Art. I, s 9, cl. 2. The scope and flexibility of the writ-its capacity to reach all manner of illegal detention-its ability to cut through barriers of form and procedural mazes-have always been emphasized and jealously guarded by courts and lawmakers. The very nature of the writ demands that it be administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected.

Harris v. Nelson, 394 U.S. 286, 291 (1969).

Indeed, wholesale denial of access to the federal courts constitutes not just a moral wrong, but a constitutional violation.  The First Amendment prohibits Congress from restricting the right to petition the government for redress, the Fourteenth Amendment imposes federal law on state governments, and the Supreme Court is the final arbiter of the meaning of the Constitution. U.S. Const. Art. III. Preventing habeas petitions for issues of first impression exceeds Congress’ authority.    

Despite all of this, including the Supreme Court declaration in Harris v. Nelson, courts have declined valid argument under the Suspension Clause of the Constitution. U.S. Const. Art.1 § 9 [2].  i.e.,  Evans v. Thompson, 518 F.3d 1 (1st Cir. 2008).  At the time the Suspension Clause was written, the writ of habeas corpus referred to pretrial detention and only to federal prisoners. See, Incorporating the Suspension Clause: Is There a Constitutional Right to Federal Habeas Corpus for State Prisoners?, Steiker, J.,  92 Mich. L.Rev. 862, 864 n.9, 865 n.17 (1994).  However, the Judiciary Act of 1867 established habeas corpus as a post-conviction remedy and applied this right to state court litigants. Judiciary Act, ch. 28, § 1, 14 Stat. 385 (1867). By that time, inferior courts had existed for over 75 years and the notion of habeas corpus had already expanded to post-conviction rights. Under this concept, then, the right of access to federal courts is one on a par with the Reconstructionist Amendments - the Judiciary Act of 1867 predates and foretells part of the purpose of those Amendments and of the Civil War itself.

The right to petition the government inherent in the First Amendment includes the right to petition the federal courts.  Given the concept of separation of powers, designed to protect against tyranny, the First Amendment prohibits Congress from limiting habeas corpus review of state court decisions impacting federal issues such that amounts to a prohibition of the right to petition the court.  Infringing upon the right of the people to petition amounts to a legislative interference with the judiciary’s exercise of its authority over the meaning of the Constitution, exceeding Congress' authority. Marbury v.Madison, 1 Cranch 137, 5 U.S. 137, 2 L.Ed. 60 (1803).   Congress' enactment of, and the Court's acquiescence to, the AEDPA imposing strict rules upon the eligibility of cases to obtain habeas review, barring new arguments from reaching the Supreme Court challenges the purpose of the Great Writ and raises a Ninth Amendment application to the right to judicial review. 

Of course, habeas petitions are not the only avenue available to most state court litigants.  On direct review and for a limited period of time, they enjoy the right to petition the Supreme Court for certiorari. Certiorari permits state court litigants the right of federal review of state court errors related to federal law without the constraints of the AEDPA. 

But both direct certiorari and habeas review contain time bars, hence the situation which mires Mr. Howell.  Given the imposition of federal law upon the states via protections of individual liberties inherent in the  Fourteenth Amendment, the filing limitations start to look ominously unconstitutional.  The seriousness of Mr. Howell's current circumstances illuminates the meaning of the term "deadline": one lawyer missed a date for filing and therefore the federal courts can and will deny review of the great writ resulting in the state taking Mr. Howell's life. 

The Judiciary Act of 1867 seemed to encourage broad federal review of state cases.  Born of the Civil War, this legislation was designed to ensure fairness to those whom society had denied basic humanity.  Denying access to habeas corpus challenges the purpose for which so many surrendered their lives and fortunes in the Civil War.  Early on, the Union learned that the Confederates were no easy target.  In the battles fought in Manassas, early jubilation of Union forces met with reinforced Confederate troops for bruising losses and a signal that the war would be long one.  In those initiating battles, the 90 day recruits became soldiers, some remaining in for the duration.  At some point, folks had to determine what it was they supported and what they were fighting - and dying - to preserve. 

As it turns out, in this sesquicentennial year of both the Emancipation Proclamation prompted by the slim victory at Antietam and the Gettysburg Address spoken on the bloodstained fields of Pennsylvania, the Union for which men sacrificed their lives was far greater than the one they went into battle to save.  The people of the Union, North and South, would harbor anger and resentment, the choices would not always be perfect, but the nation, the Union, the ideals of American democracy would emerge from the war with far greater resolve to enhance the second sentence of the Declaration of Independence.  It is that Union that ensured the right of access to the federal courts - that Union which sought to advance decency and dignity for all of its inhabitants.

So now, one hundred and fifty years later, denying access to the courts based upon one lawyer's missed deadline - indeed executing a man who has arguments left to make - seems an outrageous disparagement of these brave soldiers and the courageous Congressional leaders who insisted on making this nation better than the one that went to war against itself in the first place.  One hundred and fifty years after the Civil War, court battles on access to review and voting rights, indeed, seem to denigrate the memory of the men who gave their lives so that future generations could live together in peace.

What does happen when one person is responsible for another person's fate?  Tragedy.  The more than 700,000 Americans who gave their lives to the cause of the Civil War did not fight to ensure that one missed date would end in the death of a fellow American without judicial review.  They fought to protect the United States from dissolution on the Union side and they fought for their homes and families on the Confederate side.  The Union prevailed not just for the North's sake, but for the sake of the entire Union.  Lincoln's Second Inaugural Address and General Grant's grace at Appomattox Courthouse demonstrated empathy for the individuals who fought despite the disagreement of their position.  The United States was reborn into a more perfect union - not perfect, just a bit moreso, due to the struggles of the battles one hundred and fifty years ago.  

We continue, in fits and starts, to create and develop a more perfect union, establish justice and ensure domestic tranquility.  That progress is punctuated, however, with such skirmishes as denying access to the courts and the ballot box, two of the promises guaranteed to all Americans after the Civil War.  We honor our dead by keeping their promises to the living.  Otherwise, they all died in vain.  While that historical lens may appear to magnify the cost of denying Mr. Howell access to habeas review; it accurately reflects that when we ask people to fight and die for American values, we had better know what they are and the sacrifices the rest of us will make to ensure their perpetuity.  One lawyer missed one filing date; with the history of the great writ in the mirror, it is un-American to let another man's life act as payment for that error.

Death and Taxes: Links Between the Colfax Massacre and Al Capone

In February, one hundred years ago, the United States ratified the 16th Amendment establishing a federal income tax on individuals regardless of apportionment and census results.  Like the 13th, 14th, and 15th Amendments, the 16th Amendment radically changed the relationship between the federal government and the states.  Given the source of the current outcry against federal taxation and what the federal government does with money from individuals as an imposition on those individuals and presumably the states in which they live, this history of this Amendment - and some of its corresponding historical intrigue - bear mention on this hundredth anniversary of its birth.

William Howard Taft - perhaps the President best known for the buyer's remorse of his most ardent backer - acquiesced to a progressive agenda as Vice President but adopted a conservative "stand pat" platform once in office.  In 1909, he proposed a 2% income tax on corporations for reasons that would make our current president proud: for the privilege of doing business in these United States.  Shortly thereafter, Congress moved forward on a general income tax Amendment.  The income tax was heavily favored by the Western and Southern states; Alabama was the first to ratify in August, 1909 while the great Commonwealth of Massachusetts and our northern neighbor New Hampshire only acquiesced after the required 3/4 of the remaining states had already agreed.  Nearby Connecticut and Rhode Island rejected it outright.  Places now called "red states" signed on enthusiastically while "blue states" were lukewarm at best.  All three candidates for the 1912 election supported it: the unpopular incumbent, Mr. Taft, his former supporter turned Bull Moose Progressive Party opponent Theodore Roosevelt and the beneficiary of the party split, Woodrow Wilson.

Delaware's ratification officially added the 16th Amendment to the Constitution on February 3, 1913.  Wilson had been elected on an uncertain Democratic-somewhat-Progressive platform and it was his Secretary of State who announced the tally that the Amendment would become part of the framework of the federal government.  The Revenue Act of 1913 passed shortly thereafter.  And, the federal tax code has been growing, changing and modifying itself ever since.  Just over a decade after the Amendment became the law of the land, government sought to end the tyranny of the federal income tax by passing the Revenue Act of 1926 which modified provisions and provided certain criminal penalties for scofflaws.

It was under this law, authorized by that 1913 ratification that the federal government charged one Alfonse Capone with certain federal crimes.  The other offenses, acts made criminal by the famed Volstead Act authorized by the now defunct 18th Amendment, were dismissed.   Evasion from income taxes and failure to file and pay income taxes resulted in the imprisonment of the Chicago gangster who eventually would die of a heart attack after years of suffering from the effects of neurosyphilis, a stroke and pneumonia.  

While his case never made it to the Supreme Court on appeal, the arguments Capone raised to the Court of Appeals for the Seventh Circuit strike into the heart of the popularity of the income tax and "black letter law" notions about criminal jurisprudence.  He relied on "the principles laid down in United States v. Cruikshank" in that the indictment charging him with crimes failed to contain sufficient specificity to allege a criminal offense.  The facts of the Capone case involved an individual who earned monies and chose not to pay his fair share to the government, a duty encumbered to all citizens, regardless, apparently of the source of that income.  His argument failed and, as noted, he spent the next several years bouncing from one prison to another, allegedly bribing officials for privileges and perks until Congress and the citizenry again foiled his fortune by ending prohibition and thus the source of Capone's income and clout.  He died shortly after serving his entire term.

A little background on the facts of Cruikshank and the legal reasoning, the thoughts of the Supreme Court of the United States in 1875 bear mention. In that case, the Court found indictments defective when certain citizens of Louisiana were accused and convicted by a jury of infringing upon the federal Constitutional rights of other citizens of Louisiana - possibly, but only possibly, according to the Court, due to their race.  Charges included interfering with the right to bear arms for lawful purposes (a right, interestingly, the Court says is not actually bestowed upon the citizens by the Constitution, but rather one that merely cannot be infringed upon by Congress) and interfering with the right of peaceful assembly (again, a right not bestowed upon citizens by the Constitution but one so inherent in free government that it predated the Union of States and the protection of the right was a state, not federal power).

According to Chief Justice Waite of the Supreme Court, citizens "voluntarily" submit themselves to two sovereigns, the state and the federal government, owing allegiance to both and demanding protection from both in their individual spheres...which both give in abundance.  This must have come as news to the victims of the abominations by certain citizens of Louisiana who, by virtue of their race and former condition of servitude (calling that whole voluntary concept into extreme question) were, hmm, how to put this...murdered for being African American citizens in good standing in the state of Louisiana during Reconstruction.

It seems that, for several elections in a row, some folks were a bit disturbed at unresolved close results in Louisiana.  The gubernatorial race in Louisiana 1872 was, perhaps, one of the most tense moments of the Reconstructionist period.  The sitting Republican governor did not care for the elected Republican governor and called the disputed race for the Democrat even though he lost.  Both the Democrat and the Republican claimed victory.  In short, William Pitt Kellogg won the election, but results were disputed in certain locales including Colfax, LA.

White and black Republicans, civilians and state militia, sought to secure the Colfax courthouse when a marauding band of white, heavily armed men descended, killing many of the African American Republicans, including many who surrendered to superior firepower.  Almost 200 African American men and 3 white men were killed seeking to allow for the full electoral count to continue.  When members of the murderous group were indicted and tried, a jury of their peers convicted them for various federal offenses (which, apparently, were not crimes suitable for prosecution under Louisiana law throwing yet another wrench into Justice Waite's idyllic view of the harmony between state and federal roles and the great enjoyment of liberty each provides).  The Supreme Court tossed all of the indictments either as vague or not stating offenses or - incomprehensibly - because the Fourteenth Amendment applied only to "state action" (which predates but also remains as the continuing mantra from Cruikshank).

To understand in part why this is incomprehensible, Section One of the 14th Amendment prohibits states from depriving life, liberty and property without due process and from denying equal protection of the laws to anyone.  By failing to ensure the protection of those defending the courthouse - either in advance or after the fact by prosecution - the state of Louisiana, at a minimum, denied its African American citizens murdered by a band of killers protection by law...not to be killed by racist thugs...which seems like it should be something we should all be equally protected from experiencing.  The "state action" aspect now seems set in stone but the Cruikshank interpretation appears to run afoul of the purpose of the Amendment.

Aside from the "state action" issue, the Court essentially disregarded Section 5, the enforcement paragraph of the Fourteenth Amendment that says, "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."  Because, as it turns out, The Congress had, in fact, established appropriate legislation called, remarkably enough, The Enforcement Act, under which the defendants in Cruikshank were indicted, tried and convicted.  Until they weren't anymore, party because the Act itself was so broad and the language of the indictments mirrored it.

In the 3 years between the horrendous violence and the reversal of the convictions, President Grant had affirmed the election of Republican William Pitt Kellogg and his African American Lieutenant Governor, Caesar Carpetier Antione.  And, the former sitting governor who staged the Democratic win was impeached.  The Democrat who claimed victory despite his loss took up arms with essentially his own private army which successfully battled the state militia again until President Grant sent in federal troops to bestow the rule of law and support the elected officials of Louisiana at which point he, and his guns, backed down.

The portion of the Cruikshank ruling relied upon by Al Capone rested on the flawed and faulty indictments that gave inadequate notice of the actual offense due to their breadth mirrorring the expanse of the Act.  In Capone's case, the Seventh Circuit explained that the indictments satisfied the language of the statute, even if just barely (a point not even really touched upon in Cruikshank) but that if Capone had been unsure about the offense, he should have asked for a Bill of Particulars which he failed to do (as did the defendants in Cruikshank).  Essentially the defense that worked for racist, gun-toting vigilantes who clearly infringed upon individual liberties of fellow citizens would not succeed for a jazz-loving, gun-toting anti-prohibitionist who stiffed the feds on taxes. 

That whole stare decisis thing can get tricky.  The only portion of Cruikshank worth saving is the portion relied upon by Capone - that people need adequate notice in order for the government to have any authority to restrict liberty...and that's the part that has been shunted aside.  The remainder of the case is ludicrous.  Authored by Chief Justice Waite (an insignificant and intellectually vapid 20th round draft pick for the job and one of Grant's truly horrible appointments to any position of authority), it is internally inconsistent, devoid of thought, logic, insight and, notably, law.  And, yet, much of it really forms the backbone of some of today's arguments on the conflicting powers of the states and the federal government.

Perhaps the only human beings alive in 1875 who believed that states which had taken up arms against the Union in defense of slavery had every intention of protecting the rights, privileges and immunities of all of their citizens were on the Court.   Because there sure were a lot of citizens and federal troops still occupying the states formerly in rebellion who had their doubts.  The entire point of the 14th Amendment was to ensure the safety and protection of folks the states proved they would not keep safe and protect.  Indeed, the fact that the state had fought to maintain an institution designed to deny to a distinct portion of the population any rights, privileges or immunities granted to citizens proved a very big hint that these states were not really, truly committed to the ideas of the 14th Amendment or Chief Justice Waite's Utopian vision.  Even a jury so found ...in Louisiana ...in 1875.

Just over 50 years later, a jury convicted Capone, too.  But that conviction stuck.  The 16th Amendment confers upon Congress the power to levy income taxes.  It does not confer upon Congress any limitation or boundary for enabling the Amendment.  It is an unusual Amendment in that it grants, rather than restricts, federal power.  And yet it has been quite popular; enabling acts seeking to enforce the ability of Congress not only to levy taxes but also to enforce penalties against those who fail to pay enjoy great judicial support.

Yet, the 14th Amendment, which radically altered the relationship between the states and the federal government by design, specifically included language empowering Congress to enforce it as needs be.  The intentional breadth of the Amendment's scope and Congressional enforcement was intentional, driven in large part by the ghosts of 700,000 Americans who died in one of the bloodiest Civil Wars ever known and the hundreds of thousands of men, women and children enslaved for centuries due the color of their skin.  Shockingly, the Court ultimately struck down the Enforcement Act - legislation which had direct authority from the Constitution itself.  Curiously, it is more often the Court than other elected federal officials who ignore the intent, purpose and grandeur of the 14th Amendment.  Its purpose was to hold federalism in check: to promote the states when they extend and enlarge individual liberties and ideals of freedom but to stop them when they seek to curtail those very same foundational principles of free government.

One of the greatest pieces of legislation ever to grace this nation has become - and continues to be - a source of extraordinary conflict, undergoing nearly constant review under the guise of federalism.  Federalism, especially in the modern era, only makes sense when states ensure greater rights, privileges and immunities upon all citizens regardless of race, creed, religion, ethnicity, place of birth, gender, gender identification, or sexual orientation.  It is remarkable that its protections saved the defendants in Cruikshank from prosecution when hey interfered with an election and killed people due to their race and political affiliation when it should have protected the victims- and at the same time could not save Capone whose hard to trace and sketchy earnings from years before the enabling statutes under which he was prosecuted were enacted.  Granted, Capone's argument under Cruikshank had nothing to do with its facts or the 14th Amendment at all, merely with the idea that indictments must be specific enough to hale one into court.  His big beef was with the 16th Amendment afterall.  But, he did invoke the case and the juxtaposition of the factual history is striking.

Perhaps one lesson is this: despite the musings of one Supreme Court Justice, the Constitution that binds us together is not dead.  It is alive in we, the people - so long as we pay our taxes.   

Judging What is Necessary and Expedient

It was for our own good.  When Thomas Jefferson connived with his Cabinet to obtain lands around the Mississippi in order to control the port of New Orleans, the intent was to involve the citizenry for any purchase.  President Jefferson being, well, Jeffersonian, strove to increase participation in government, not act in a kingly fashion.  Given that the Constitution did not mention land acquisition, purchasing land would require an Amendment.  But, time was of the essence - Spain was weak and Napoleon was desperate and the time was right so he made the iron hot by striking.  In that moment a quest to operate one port on the Mississippi doubled the size of the country.

Although it was outside the authority of the federal government, President Jefferson reasoned the land grab away.  While a Constitutional Amendment would have been nice and a vote would have been helpful, but in the end,“[i]t is the case of a guardian, investing the money of his ward in purchasing an important adjacent territory; and saying to him when of age, I did this for your good.”

Andrew A. Lipscomb  and Albert E. Bergh, eds. The Writings of Thomas Jefferson (Washington, D.C.: Thomas Jefferson Memorial Association of the United States, 1903-04), 10:411.

Apparently we have come of age to accept that when our leaders act in contravention of the Constitution, we are to dispense gratefully with our governing document, even on issues of due process of law and notions of ordered liberty.  At least this is the circulating argument on the white paper on death by drone.  

As unlawful as it was, we could not imagine America without the expanse of the Louisiana Purchase: from the Dakotas to Texas, from Montana to Louisiana, from Minnesota to New Mexico, Iowa to Wyoming, Missouri to Colorado and everything in between.  Without this land, we would not have known Bleeding Kansas or the Kansas-Nebraska Act or the Missouri Compromise; we would not ever know that the wind comes sweeping down the plain in Oklahoma; we never could have sent the National Guard to integrate schools in Little Rock; we would never have had a Rocky Mountain high; and instead of jazz, we would have silence.

In order to be our guardian, Thomas Jefferson had to violate everything he claimed to believe: that the president should be a weak office, that the Constitution governed all federal business and that without exception the Constitution did not contain a provision for acquiring land...not to mention that title was a bit sketchy.  That is, if title were held by France in retrocession, Napoleon could not sell it to a third party; if it were held by Spain, he could not sell it at all and yet Jefferson agreed to the deal understanding that one of those two scenarios was true.  It was - to be sure - a bargain - three cents an acre for prime real estate with a busy port, arable land, navigable rivers, and strategic mountains.  But if it did more than just invite war with Spain, that $15 million venture would have been wasted and, worse, tantamount to treason.  No one is here suggesting a return policy; just questioning when a president can justify his big, broad, undeniably unconstitutional actions after they occur by claiming that they are in the public interest and we will thank him later.

And, when the president acts outside the confines of the Constitution for our own good, can that ever include the denigration of individual liberties Americans hold dear?  Regardless of emotions about Mr. Jefferson and the validity of the acquisition, it seems fair that doubling the land mass of the nation is easier to justify after the fact than, say, killing someone because a high ranking American official "believes" that the individual presents an imminent threat of violent attack against the United States...provided that "imminent" means something other than, well "imminent"...something closer to "eventual" or "possible."  It's not entirely clear what the term "violent attack" means either.

Mr. Jefferson, for all his ex-post-facto-clean-up-the-damage-that-the-amendment-was-unnecessary logic after the Louisiana Purchase, seriously exceeded his authority, but in so doing he did not appear to infringe upon individual liberties. 

During the Civil War, Lincoln and his Cabinet agonized over due process of law issuing the Lieber Code which essentially prohibited bounties for individuals and sought trials rather than execution for those taken captive.  Indeed, in the last 150 years since that edict issued, more wars have been fought, new rules have developed pertaining not just to one nation's armed forces, but internationally. There are rules in war and it behooves us, even in the most trying of times, to abide them lest we devolve into something incompatible with the second sentence of the Declaration of Independence.

As much as it gives some people solace to believe that the good guys with the guns are overpowering the bad guys with the guns, complicity is perilous.  Sacrificing American principles in the pursuit of individual targets is decidedly un-American.  Due process of law conceptualizes notice, an opportunity to be heard in one's defense, representation when the issue is complex or affects individual liberty, fair dealing, equal treatment under the law, some level of review, and a basic set of rules and procedures to follow - even in, perhaps especially in, times of war.  It is hard to equate this notion with unmanned aircraft seeking out and killing people who are hard to capture.  Then again, the rationale for failing to prosecute the bankers who destroyed the world economy in a violent crash of markets is that it is just too hard - presenting, it would seem, a kind of opportunity under this program.

Taking life - restricting liberty - depriving anyone of the rights that we proclaim for ourselves challenges the notion of what being an American means (even if the target is a terrorist or a banker).  When did our nation become willing to deny rights to others?  In one brilliant speech on the eve of America's entry into the second World War, Secretary of the Interior Harold Ickes explained that Americans will sacrifice property, ease and security in order to be free and to fight for others to be free as well.

Even as great strides toward human rights and dignity for all people advance in the United States, we are far from illustrating a perfect example of democracy or liberty or fairness; we now chafe with the idea of sacrifice and we bristle with inclusiveness.  We have much work to do at home.  Even with their superior knowledge of the dangers that lurk...everywhere...our nation's leaders do more damage to our own concept of liberty and set a terrible example for progress...anywhere... when they single out individuals and murder them.  Throughout America, states are questioning the appropriateness of capital punishment after trial and review even as our government dispenses with the pleasantries and kills people in our name.

The problems with the far reaches of the drone program combined with its video-game-like ease aside, executive orders related to assassination and other nefarious conduct is not new.  The Church Commission famously investigated  plots against leaders of several nations; the upshot was that the United States should not engage in assassinations.  Yet, we have so engaged, and much to our collective chagrin, we will continue to be so engaged.  As fewer and fewer people pay attention to the withering away of their own rights, the powers that be will keep their enemies list more and more secret, each homicide less and less publicized.   And, each one will be justified with the same rationalization, that it was for our own good.

Criminal Restitution Fails to Satisfy

Exacting punishment is a difficult process and it has ever been thus.  Ancient law discussed the misunderstood "eye for an eye" retributive justice which, scholars explain, was not the actual eye removal, but rather the limit of the punishment; for harming one's eye, the penalty shall be the value no greater than the harm to the offender's eye.  It was monetary and value based rather than literal.  The notion of criminal restitution draws on this ancient doctrine for its validity.

In Massachusetts, while criminal restitution enjoys large judicial support, its purpose is utterly unclear.  It seems not to have a home: whether to punish or reform, to rehabilitate the offender or to compensate for loss.  Criminal restitution must not exceed the actual cost of repair or damage and the offender is entitled to a hearing where such proof is presented; ability to pay must be factored in to the equation and so it is unlike its civil restitution counterpart.  The system is so ill designed that payments, when they can be made, are submitted to the probation department which then has no regulated accounting process by which it must account for the funds and release them to victims save keeping a receipt therefore.

Criminal restitution is "punitive" in nature.  Unlike compensatory damages, it is, therefore, subject to taxation by the recipient.  Not only does this mean it fails in its purpose of making whole, but there is no industry watchdog to ensure that the state receives its proper tax through this haphazard system. If not taxed and treated more like civil compensation to make the victim whole, then query its place in the echelons of criminal justice, a state-driven punitive entity.  Despite its chameleon-like existence, criminal restitution is decidedly disciplinary enough so that if an individual owing restitution misses a payment, s/he is subject to probation violation proceedings.

That is, failing to pay restitution can lead to incarceration.  This conflicts with the concept of ordered liberty.  An inability or lack of desire to pay a private debt may have consequences, but jail should not be one of them.  Civil action by the creditor is a possibility, and most private debts can be dismissed in bankruptcy proceedings if necessary.  But, criminal restitution essentially establishes a debt under the auspices of criminal courts which have the ability to jail people...for failing to pay a debt...to a private party...whose counsel was provided by the state...and which is not eligible for relief from the bankruptcy courts.  This just seems wrong; it even raises concerns about the use of criminal courts, payment for prosecutors and equal protection since civil litigants will not lose liberty of they cannot pay.

If the goal includes reform and rehabilitation, then it must not depend on the size of the loss to the victim.  The aspiration is to teach the offender that s/he is part of a greater society, a society that values all members and wants participation from all members.  This view of restitution has resonance; our actions affect others and those others are part of our greater world.  When we harm them, we harm ourselves and therefore, to make the victim whole and to restore our community to stasis, we must heal the wounds we created.  In the eye for an eye comparison, this represents that the value of the eye is the maximum penalty, but that a lesser penalty can satisfy justice.

If the goal is punitive and designed to compensate for loss, putting aside the civil court system designed for that purpose, criminal restitution becomes a sword.  The aspiration is to demonstrate that providing funds to the victim evidences penance.  This view of restitution has resonance, too; our actions have consequences not only for those we harm but to us in our daily lives.  When we harm people, we too will face financial harm until such time as we compensate the loss.  In the eye for an eye comparison, this represents the equitable scale where the maximum penalty is the only just penalty.

Regardless of the view of criminal restitution, or even when it may be appropriate and for what types of losses, unlike its civil counterpart, ability to pay is always a factor for consideration.  This is true because due process of law demands it but also because criminal courts are busy doling out punishment for crimes; they are not collection agencies.  Given that the vast majority of criminal defendants are indigent, many with mental health or addiction problems, ability to pay takes on great force in the process from the initial award to the concept of probation violation for failing to pay restitution.  We rid ourselves of debtors prisons by federal law in 1833.  But, in a recent case mimicking a morality play, ability to pay stands front and center in a starring role.

In Commonwealth v. Avram A. , an 11 year old boy was found delinquent for "tagging" - expressing his creativity with spray paint on other people's property.  He admitted to sufficient facts and agreed to a hearing to determine restitution and his ability to pay.  It is doubtful he anticipated the $1313.78 sum determined by the juvenile court judge; there is no record of how the court decided the child's ability to pay the restitution.  He was placed on a type of probation called a continuance without a finding; a fancy way of saying if he completed his probation, the charge would be dismissed.  A year later, having failed to pay, he was surrendered on a probation violation, found in violation and his probation was extended until his 16th birthday with the requirement to pay the restitution.

Although acknowledging that the child was 12, and subject to child labor laws prohibiting work, the Appeals Court upheld the violation and the sentence extension reasoning, in part, that as the child got older he would become more and more capable of paying the debt.  Indeed, at his age he was old enough to get a paper route...for newspapers that are losing readership at an alarming rate...and which routes have long been replaced by adults with cars to cover the broader area required for the few folks who like ink on their hands...in support of a sadly dying industry.

In the penance/punishment model of restitution, the boy needs to understand that his actions have consequences.  But, doesn't he?  He got caught which is often enough to scare a young child. Reforms on child labor put in place a century ago finally took hold during the Great Depression because adults needed the jobs that children formerly held - a phenomenon as true today as then.  Thus, even if America were not in a jobless recovery, he is prohibited by law from working for money except under limited conditions and the court knew that when it initially sentenced him.  Under principles of due process of law, cruel or unusual punishment, double jeopardy, and the reformatory nature of juvenile justice, by what fiat can that sentence be enhanced for four additional years so that he can grow into a place where he might earn over $1000?

Whatever the lessons of criminal restitution, they cannot be the beating of the tell-tale heart echoing forever no matter what one does.  The boy was 11 at the time of his offense.  11 year olds cannot even see The Hobbit without parental permission.  And it is reasonable for a court to hold him under terms of probation until he is 16 for a debt to a private party?

In the reform/rehabilitation model of restitution, the boy needs to feel responsible for his actions.  But, doesn't he?  He got caught which is often enough to scare a young child.  He has not otherwise violated his probation.  He cannot legally earn the amount of money needed to compensate for his actions, but he has taken steps to reform his behavior.   Thus, rather than violating him on his probation, the court should have accepted that the penalty was too high; he lacked the ability to pay but the other aspects of restitution and probation had been accomplished.  Indeed, built into the criminal restitution model is the opportunity for review as to ability to pay. 

Both models have the potential to leave the victims without compensation.  But, compensation to victims is not part of the criminal justice model anymore: that whole eye for an eye idea faded when criminal and civil law grew into their own branches.  In a reform movement several years ago, the idea of victims rights developed.  Pursuant thereto, a fund was established under G.L. c. 258  as part of a larger framework for victims of crime.  Understanding that certain expenses might accompany criminal acts, each district attorney is obliged to establish services and programs to assist crime victims in the system.  Convicted offenders must pay in to the victim/witness fund; adults must pay $90 and juveniles 14 and over are not required to pay more than $45.  There is no required amount for juveniles under 14, probably due to an implied inability to pay.  G.L. c. 258B sec. 8. The maximum amount allowed for compensating a crime victim is $25,000. G.L. c. 258C sec. 3. Surely, once the court realized its error in requiring a child to pay an amount he could not legally earn in a year - or realistically during the jurisdiction of the court's authority over him -  the court should have instructed the prosecutor to relieve the victims by way of the fund.

The legislature has deemed that juveniles of this age presumptively cannot pay $45, so can a court hold an individual in perpetual restraint of liberty for failing to pay $1300?  The case of this young boy is troubling on a number of levels.

As a practical matter, criminal restitution, an extremely popular and widespread punishment, is unworkable and contrary to the criminal justice system.  Payments to crime victims should come directly from the victim/witness fund and not from the offender.  The offender may be charged fines to the state, so long as they are not excessive as per the Eighth Amendment And Art. 26.  The offender may lose his liberty as a result of the criminal acts.  But, it is a waste of public dollars for the government to use valuable resources in order to collect a private debt.  The system is not designed for that purpose and the costs far outweigh the benefits.  If restitution is desired, the case should be sent for mediation with a legitimate plan for compensation or acceptance of responsibility satisfactory to the victim without the threat of a loss of liberty for failing to pay.  If punishment is desired, then the state has plenty of tools in its shed to implement.  The real questions that must be asked - and if possible, answered - what are we trying to do?  And, what methods best help us achieve that goal?  Regardless of the answers, criminal restitution will never satisfy.