by MCVRC Webmaster | Jul 15, 2019 | Press Releases
Upper Marlboro, Maryland — In a July 26, 2019, published decision entitled In re: Carlos Brown, No. 18-1527, which resulted from an appellate mandamus petition filed on behalf of a client victim by the Maryland Crime Victims’ Resource Center, the Fourth Circuit granted the MCVRC mandamus request and put limits on federal trial court judges’ decisions to refuse victim’s restitution requests entirely, as occurred here, because the judges would rather not deal with restitution.
After the victim sought appellate review of the entire denial by the sentencing court of the victim’s restitution request, the defense initially challenged the victim’s right to go right from the federal magistrate’s misdemeanor court by mandamus directly to the court of appeals, arguing that any such victim complaint must first go to the district court that handles felonies and appointed the magistrate judge. The court of appeals disagreed and after analyzing many of the federal magistrate statutes, stated (slip op. 13-14):
…we conclude that a magistrate court is included within the term “district court” under [18 U.S.C.] § 3771(d)(3). * * * We see no basis, sub silentio, to draw such a distinction [between the magistrate and district courts] in the absence of a specific direction from Congress. To do so would create the absurd result that under § 3771(d)(3), a crime victim could petition from the denial of restitution if a district judge made the determination but could not do so if a magistrate judge made the same decision.
[Defendant] Boone’s reading requires that when a magistrate judge declines to award restitution pursuant to § 636(a) and § 3401 in a petty offense case, a victim cannot exercise his statutory rights under § 3771(d)(3) to seek appellate review of that decision. Boone points to no legal authority other than her tortured interpretation of § 3771(d)(3), which effectively negates the specific rights of crime victims guaranteed by the CVRA. Construing the statutes as Boone proposes directly contradicts Congress’ express, unambiguous intent that regardless of whether the underlying offense is a petty offense, “[t]he crime victim or the crime victim’s lawful representative [as well as] the attorney for the Government may assert” the rights to restitution provided under § 3771. § 3771(d)(1).
Then, after finding proper jurisdiction for the victim’s mandamus petition, the appeals court held that the magistrate judge abused its discretion when it ordered no restitution at all, stating, slip op.18-19:
While the court found certain facts relating to each of the statutory factors—the victim’s need for restitution and the burden imposed on the sentencing court—it failed to articulate how it balanced those factors to determine that restitution was unwarranted. By failing to do so, the court violated its duty under § 3663(a)(1)(B)(ii) to expressly weigh: the burden of adjudicating the restitution issue against the desirability of immediate restitution—or otherwise stated, a weighing of the burden that would be imposed on the court by adjudicating restitution in the criminal case against the burden that would be imposed on the victim by leaving him or her to other available legal remedies. United States v. Kones, 77 F.3d 66, 68–69 (3d Cir. 1996). Put another way, the court abused its discretion by failing to state why the burden of complexity or delay in sentencing outweighed Brown’s need for restitution. This abuse of discretion harmed Brown because he received none of the requested restitution to which he may be entitled under the VWPA. Accordingly, we grant the petition for mandamus, thereby vacating the order denying restitution, and remand the case for the magistrate judge to conduct and explain on the record its balancing analysis in determining whether to award restitution.
This requirement, that a court denying restitution “explain on the record its balancing analysis” means that courts cannot hide behind any philosophical or pragmatic scheduling opposition to getting into the subject of restitution in a criminal case. In this case, the victim purposely forewent his complex insured medical expense losses and confined his request simply to his past lost wages request supported by his tax return, a doctor’s letter, and his own testimony, thereby making “the burden that calculating restitution would place on the sentencing process” (slip op. 20) almost inconsequential. Even so, the magistrate judge refused to order any restitution because it was a contested issue, stating “[T]his is misdemeanor court. This court generally does not deal with restitution, and if we are going to deal with restitution, it is not in this amount [i.e. $20,000). * * * We are contested here, and that is why this is just so not the forum to be dealing with these kinds of figures.” (Slip op. 6). That blanket excuse is no longer valid in federal court in Maryland.
The court also stated that the availability of alternative civil remedies “is merely one factor for the court to balance and should not be the controlling factor in and of itself. Rather, the ‘primary consideration’ of the complexity exception [which exception the defense routinely invokes] ‘is the burden that calculating restitution would place on the sentencing process.'” (slip op. 20). Previously, this sentencing judge, as the court itself admitted, rarely if even ordered restitution for victims. Now that MCVRC has shined a light on this court’s failure to do its job, simplified restitution requests, like the one submitted here by MCVRC on behalf of this victim, have a much higher likelihood of being granted.
by MCVRC Webmaster | May 22, 2019 | Press Releases
Upper Marlboro, Maryland — In its June 4, 2019, decision in Shannon v. State of Maryland, No. 2378, 2017 Term, the Maryland Court of Special Appeals referenced a recent Maryland Court of Appeals ruling which better defined victims’ rights for restitution, a precedent-setting case in which MCVRC was acknowledged as playing an important role.
In the previous case (In re: G.R., No. 32, 2018 Term), MCVRC submitted a “friend of the court” amicus brief, arguing that restitution is proper even when there is no physical damage from a crime and even when the damage occurs at the place far removed from the scene of the crime, if the crime diminishes the value of a victim’s property.
MCVRC’s argument led to the Maryland Court of Appeals overturning an intermediate appellate court ruling that disallowed restitution for the victim’s cost of rekeying the locks on his family’s homes after he had been robbed of his keys because the robbery of keys “caused no immediate damage to any of the locks.” In its April 1, 2019, decision to reverse, Maryland’s highest court cited and adopted MCVRC’s argument and stated that the “diminished value” was the lack of security from the compromised house locks.
In Shannon v. State of Maryland, after a local gang threatened to burn down a resident’s home, the resident fled, forfeiting a housing security deposit and first month’s rent. In upholding the lower court’s ruling ordering the defendant to pay restitution to the victim for both of these sums, the Maryland Court of Special Appeals referenced the decision in In re: G.R. and quoted with attribution MCVRC’s amicus brief in the earlier case. The court held that “In re G.R. teaches that restitution may encompass expenses incurred to remediate the ‘security and sanctity’ of a victim’s home after it has been compromised as a ‘direct result’ of the defendant’s criminal conduct.”
MCVRC is a statewide Maryland non-profit organization whose mission is to ensure that the rights of victims of crime are fully implemented and that crime victims are treated with dignity and compassion. MCVRC www.mdcrimevictims.org/help) offers free legal representation and grief counseling, counseling, and other assistance. MCVRC makes its free services available to victims including family members of homicide victims and can be reached, toll free at 1-877-VICTIM1 and at 301-952-0063.
by MCVRC Webmaster | Mar 5, 2019 | Press Releases
On March 19, 2019, the United States Supreme Court granted the request of the State of Virginia, which the Maryland Crime Victims’ Resource Center, Inc. (MCVRC) supported in a written filing, to review the decision of the Federal courts that had overturned the Virginia state court rulings upholding Malvo’s four Virginia life sentences for first degree murder that were imposed in 2004. (Randall Mathena, Warden, v. Lee Boyd Malvo, U.S.Supreme Court No. 18-217).
The issue that will be reviewed is whether, pursuant to the Supreme Court’s prior ruling in Montgomery v. Louisiana, 136 S.Ct. 718, 735 (2016), sentencing courts must issue a specific formal finding that a defendant who was under 18 at the time of the crime could never be rehabilitated, before a life sentence could be imposed, including in cases where the record at sentencing, taken as a whole, supported the conclusion that the court had implicitly reached that same conclusion.
Russell P. Butler, Executive Director, and Victor Stone, as attorneys for MCVRC filed an amicus brief in the Court on behalf of crime victims urging the Court to accept the case and reverse the ruling that vacated Malvo’s life without parole sentences. MCVRC’s brief argued that reversing the sentences would cause the family members of Malvo’s victims serious harm and the Court should consider that harm to the victims when determining the legal issues in the case:
“Resentencing determinations are not a “no cost” event, or of only de minimus harm to victims. A victim’s interest in finality is an interest in fairness. As [the Supreme Court two decades ago] indicated:
Only with real finality can the victims of crime move forward knowing the moral judgment will be carried out. … To unsettle these expectations is to inflict a profound injury to the “powerful and legitimate interest in punishing the guilty,” … an interest shared by the State and the victims of crime alike.
Reopening a sentence causes harm to victims because it unsettles the finality of sentences. The emotional exhaustion, depression, and horror for a victim, often never ending, is greatly amplified by resentencing proceedings.”
The legal position advocated in MCVRC’s brief is that the:
“… Fifth Amendment constitutional and federal statutory substantive and procedural due process fairness protections were Constitutionally guaranteed [not just to defendants, but also] to victims by enactment of 18 U.S.C.3771(a)(8), which provides to victims “The right to be treated with fairness and with respect for the victim’s dignity and privacy.”
Commenting upon the Supreme Court’s action, Roberta Roper, a founder of MCVRC, stated that “In response to MCVRC’s written brief, the decision of the Supreme Court to review this case provides an opportunity to obtain a Supreme Court ruling that courts tasked with acting fairly and justly on defendants’ requests to reopen their old closed sentences must consider, in addition to the impact of long incarceration on a defendant, the trauma to victims who will suffer having to publicly tear open their deep and very personal wounds in order to provide a new victim impact statement to the court, many years after their original painful recounting of the harm resulting from the crime.”
MCVRC is a statewide Maryland non-profit organization whose mission is to ensure that the rights of victims of crime are fully implemented and that crime victims are treated with dignity and compassion. MCVRC (www.mdcrimevictims.org/help) offers no cost legal representation and grief counseling, counseling, and other assistance. MCVRC makes its free services available to victims including family members of homicide victims and can be reached, toll free at 1-877-VICTIM1 and at 301-952-0063. In separate State and federal proceedings in Maryland, MCVRC represents a family member of one of Malvo’s victims.
