State v. Clapper

I concede that all federal courts of appeals have concluded that either Blakely v. Washington1 or United States v. Booker2 does not require a jury to determine the facts supporting restitution.3 But, under Blakely, I believe that allowing a sentencing court to order restitution without the defendant’s admitting the facts or a jury’s deciding the facts supporting restitution violates a defendant’s constitutional right to have a jury find any fact “ ‘which the law makes essential to the punishment.’ ”4

Although the U.S. Supreme Court has not yet decided whether a defendant has a right to a jury…