The Criminal Lawyer

It was a case of very strange bedfellows today at the Supreme Court.  The 5-4 decision in Dolan v. U.S. (opinion here) wasn’t split on ideological lines, but on lines of seniority.  The majority consisted of the five most junior Justices, while the senior Justices were joined in a solid dissent.  So Thomas and Alito sided with Breyer, Ginsburg and Sotomayor.  And Roberts and Scalia were united with Stevens and Kennedy.

What gives?  We suggest that it reflects a changing approach to statutory interpretation. 

The case is about how to interpret 18 U.S.C. § 3664(d)(5), which says a sentencing court has to order restitution within 90 days of sentencing, but fails to specify what happens if the deadline is missed.  Specifically, it says that, if losses aren’t calculated 10 days before sentencing, the court “shall set a date for the final determination of the victim’s losses, not to exceed 90 days after sentencing.”  That word “shall” is pretty strong, and its accepted meaning is “must.”  In other words, a court has no choice here, no discretion, but “must” set a restitution amount within 90 days.  But there is no provision for remedies if that doesn’t happen.  So the Court had to fill in the blanks.

The majority reasoned that, given that the whole point of the statute is to ensure speedy restitution to victims, Congress couldn’t possibly have intended for restitution to be forfeited if a court takes too long.  And Congress wasn’t particularly concerned with giving finality to defendants, but anyway so long as the defendant is on notice that restitution is in fact going to be ordered, the defendant isn’t harmed if the deadline is missed. 

The dissenting Justices pointed out that this interpretation makes a nullity of 18 U.S.C. § 3664(d)(5).  The 90-day deadline is no deadline at all.  The majority allows restitution to be ordered at any time after sentencing, thereby gutting the plain language of the (more…)

The respected journal Science will publish tomorrow a research study that suggests that the threat of punishment can keep people from getting in trouble. Stop the presses!

You’d think that this might have been studied before. But previous studies (focusing on freeloading vs. pro-social behavior) only focused on short-term outcomes. This new study, on the other hand, found in the long term the threat of punishment becomes deeply embedded in people’s subconscious, so that they come to fear getting in trouble.

You’d think this might have been too obvious to require study. But as Karl Sigmund of the University of Vienna explained to LiveScience.com, “the experimental work is extremely important and timely, as many researchers had voices concern whether punishment is not too costly a tool to promote cooperation.”

Clearly punishment isn’t the only tool out there to affect people’s behavior. Socialization, community involvement, and positive inducements are all strong factors. But we’re going to go out on a limb and say that, until something else comes along that satisfies society’s need for deterrence, removal (and, sadly, retribution), punishment’s going to remain part of our toolbox for a long long time.

[The research was performed by a team led by Simon Gächter at the University of Nottingham.]