Ward v. Chavez, No. 09-17016 (5-8-12)(Rakoff, Sr. D.J. SDNY, with M. Smith; Wallace dissenting).
This concerns a petitioner paying for his crimes...actually paying under a restitution order. Here, the district court ordered the defendant to make restitution "immediately" but did not consider his ability to pay during his lengthy sentence, nor set up a payment schedule. The court left it to the BOP. This is an improper delegation. The petitioner, who was employed under the BOP, argued that the BOP could not just set what was fair, or what it considered fair. This is a core judicial function. The 9th agreed, reversed, and remanded. The 9th followed the Gunning and Lemoine precedents in requiring the court to set an amount after considering the ability to pay. The 9th, furthermore, found that the petitioner did not have to exhaust administrative remedies after the first denial by the warden, because to do so would have been futile under 2241. Dissenting, Wallace argues that the petitioner waived this argument. The petitioner should have raised this on appeal. Even now, the proper action would be for the petitioner to pay what he wanted, and if he failed to pay, for the government to move for sanctions.