Monday, January 13, 2020

People v. M.B. (Cal. Ct. App. - Jan. 13, 2020)

The Court of Appeal has previously held that you can't impose a criminal restitution penalty before you decide whether the would-be debtor has the ability to pay it; otherwise it's unnecessary (and useless) punishment.

The Court of Appeal decides today -- in an opinion that's only six pages long (including the concurrence) -- that this principle doesn't apply to identical restitution penalties in juvenile cases.

Two things about today's brief, but important, opinion.

First, it's obvious that this panel doesn't agree with the prior decision.  Fair enough.  Panels can obviously disagree, and aren't required to follow horizontal precedent.  Nor are they required to elaborate at length on this disagreement if there are other opinions that have already done so.

Nonetheless, I thought that Justice Yegan (who authors today's opinion) might have wanted to expound a little more, or a little better, than he did on why the prior opinion didn't apply here.

Justice Yegan's opinion basically says that regardless of whether the prior opinion is right or wrong, the present statute expressly says that a court doesn't need to examine ability to pay or to require a separate hearing on this issue.  Okay.  That's different than the adult restitution statute, for sure, since the latter is silent on the issue.

But as Justice Yegan recognized, the prior opinion by the Court of Appeal was based on due process and equal protection principles:  constitutional concepts.  If applicable, those trump -- very concretely -- what the statute says.  So I don't think it's quite right to just briefly state that the appropriate rule here is clear since the statute at issue is (as Justice Yegan twice says) "pretty straightforward."  The actual issue is whether the state and/or federal constitutions require something different than what the statue says.   And that's a difficult question, and one necessarily not answered by the statutory text.

Second, I appreciated Justice Yegan's concurrence to his own opinion, but wonder how far it goes, or which way it cuts.  He points out (correctly) that we're spending an awful lot of money arguing about (or "chasing down") tiny restitution awards, and thus suggests that even if the prior opinion achieved justice in the particular case in front of it (involving an indigent defendant with cerebral palsy who was obviously never going to be able to pay), it didn't make sense to make such a big deal about such a tiny issue, or to require in other cases all the appeals and hearings resulting therefrom.

That's indeed a consequence of making opinions retroactive (to cases on direct appeal, anyway) as opposed to purely prospective (for future restitution awards).  It's a classic and oft-repeated problem that's not unique to this particular dispute.

But Justice Yegan rightly notes that we're typically talking about tiny restitution orders here.  So asks (correctly) "How much time and money should the juvenile justice system spend to 'chase' this $100" restitution award?

But you can see that argument going exactly the other way, right?  Sure, it's a tiny amount, so for that reason, we presumably don't care all that much about it.  (It may not be tiny to the defendant, mind you, but from the state's perspective, it's insignificant.  As Justice Yegan ends his concurrence: "The latin phrase, 'de minimis non curat lex' comes to mind.")

But that's equally a reason not to impose the order in the first place, right?  And, similarly, not to care about wiping the slate clean for cases on direct appeal.  It takes two to fight.  If the government does not feel like an $100 order that's probably never going to be paid anyway isn't worth "a bus trip from juvenile camp to court for a hearing that may, perhaps, result in a lessening of a restitution fine" or "appointed counsel" therein, it can easily avoid all that with a stipulated reversal of the trifle about which the law does not care.

So, yes, it's silly to have huge fights about things that are systemically irrelevant.  (Though I think we still want to fight about things that are keenly relevant to individuals, even though less relevant to the system.)  But that includes the silliness of having the state fight about them.  Particularly when one should remember that the cost of the $100 order isn't just (on one side) the cost of the bus trip (which, yes, we'd like to avoid), but also, on the other side, the cost of actually trying to enforce the $100 order; the collection letters, the probation office record keeping and follow-up, etc.  Those are not trivial costs either.

So the real questions are (1) what the Constitution requires (not what the statute says), (2) what's the best policy, for the individual and/or the state, and (3) which procedure is most efficient; a system that routinely enters mandatory orders that few people will ever pay and that burdens people and the system with their enforcement, or a system that takes into account ability to pay but requires hearings for those defendants sentenced in the interim under the old regime.

Those critical questions aren't much answered in today's very short opinion.  So while I think the focus on this systemic issue is great, I'm not sure the arguments herein advance the ball much.

Or, at a minimum, to me, today's opinion raises just as many questions as it answers.