Sunday, May 13, 2012

Case o' The Week: Ward[ing] off BOP Restitution Schedules - Ward and Restitution Orders

At the max rate of $1.15 an hour, it will take petitioner Ward twelve years to  work off his restitution order while employed by Unicor in federal prison, if every dime went to the victims.

(Then he can start in on his special assessment).

In an interesting decision on restitution, the Ninth tackles the requirements of restitution orders, and pushes back on the delegation of these orders to the Bureau of Prisons. Ward v. Chavez, 2012 WL 1592171 (9th Cir. May 8, 2012), decision available here.

Players: Decision by Sr. District Judge Rakoff, joined by Judge Milan Smith. Dissent by Judge Wallace.

Facts: Ward was sentenced to 300 months for armed bank robbery convictions. Id. The district court ordered Ward to pay a $1,000 Crime Victim Fund assessment, and over $27,000 in restitution to the crime victims. Id. These two obligations were ordered due “immediately.” Id. Ward went to federal prison and voluntarily went to work for Unicor. Id. The BOP deducted portions of his Unicor payments and applied these withholdings to his restitution obligation. Id. Ward filed a series of habeas actions challenging this withholding. Id. at *1-*2. The district court found that the original sentencing judge had not impermissibly delegated its responsibility to set a restitution schedule, because it had not directed the BOP to set a schedule, and because Ward was voluntarily working. Id. at *2. Ward appealed. Id.

Issue(s): “The issue in this case is whether, under the Mandatory Victims Restitution Act of 1996 (“MVRA”), a district court impermissibly delegates its obligation to set a restitution payment schedule when it orders ‘immediate payment’ with the expectation that the Bureau of Prisons (“BOP”) will work out a payment schedule with the prisoner . . . .” Id. at *1. “Since [previous authority] forecloses Ward’s argument that he is being ‘forced’ to participate in the voluntary [BOP restitution program], the issue in this case thus turns on whether by ordering ‘immediate’ payment of restitution, the district court failed in effect to set a restitution repayment schedule and instead delegated its statutory duty to the BOP.” Id.

Held:We hold that where the sentencing court has failed to consider whether the defendant has the financial resources to pay restitution immediately, ordering inmate payment impermissibly delegates to the BOP the court’s obligation to set a payment schedule.Id.

Of Note: With good time, Ward will serve over twenty-one years. The odds of any victim seeing any significant restitution payment seems exceedingly small. That doesn’t prevent, however, a lengthy dispute between two senior judges: Senior District Judge Rakoff of the SD NY (author of the majority decision), and Senior Ninth Circuit Judge Wallace. See id. at *9 (Wallace, J., dissenting). 

Judge Wallace wonders why the Ninth is considering Ward’s beef at all, when it wasn’t raised on direct appeal. See id. When the majority counters that the government waived the waiver argument by not raising it, Judge Wallace finds it “ironic, to say the least.” Id. at *11 & n.1. Ward is a good case for trial attorneys on restitution orders, but may also be of surprising interest to habeas folks looking to level “waiver” against the government’s claim of procedural default.

How to Use: To our discredit, restitution is usually the last thing on defense counsel’s minds when representing indigent inmates facing decades of custodial time. Seems the Ninth is, of late, reminding all below that restitution matters, and sending cases back down to get it right. In just the last year, in Dann, 652 F.3d 1160 (9th Cir 2011), in Yeung, 672 F.3d 594 (9th Cir. 2012), and in Ward the Ninth has reversed restitution orders that didn’t follow the requirements of the Mandatory Victims’ Restitution Act. Read this trilogy of cases for good explanations of this developing area of Ninth Circuit law.
For Further Reading: Judge James Browning passed away last week: a tremendous loss to the Ninth Circuit, and to those who care about the defense of indigent clients. For a moving tribute to a remarkable jurist, see the musings of former law clerk Bobby Ahdieh here

How central was Judge Browning to a memorable era of American history? Literally front and center: you'll find him as a young man, front and center of this photograph of the Kennedy inauguration.

Unicor logo from

Image of (young) Judge James Browning from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at

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