NCJ Number
101883
Journal
Cincinnati Law Review Volume: 53 Issue: 1 Dated: (1984) Pages: 263-296
Date Published
1984
Length
34 pages
Annotation
This article reviews the decision of the Federal District Court for the Northern District of Alabama in United States v. Welden (1983), which held that the restitution provisions of the Victim and Witness Protection Act (VWPA) of 1982 violate the fifth and seventh amendments of the U.S. Constitution.
Abstract
Sections 3579 and 3580 of the VWPA require a court, in sentencing a convicted defendant, to order restitution to the victims or to state its reason for its failure to do so. The VWPA also permits the victim or the state to pursue the civil enforcement measures of garnishment, attachment, or imprisonment through arrest against an offender who does not pay the restitution. The 'Welden' court found that due process and equal protection require ascertainable standards to ensure fairness and reasonableness to offenders. Because a restitution hearing has the significance of a damages action, the court reasoned that it would be an unduly broad grant of power to permit the judge to decide a damage issue having the effect of a civil judgment without the use of discovery, rules of evidence, or other civil procedures. Unduly broad discretion, held the court, could result in a denial of a defendant's right to a trial on the merits of damages and disparate results in the Federal system, denying the offender equal protection under the law. The court erred in declaring VWPA section 3579 and 3580 unequivocally unconstitutional. In the majority of cases in which the restitution amount is relatively small and no major dispute exists regarding the offender's liability, restitution can be ordered without violating the offender's constitutional rights. When the offender is subject to the deprivation of major property rights or when major issues are disputed, however, the offender's full rights in a civil proceeding should be protected. 104 footnotes.