                 Cite as: 586 U. S. ____ (2019)           1

                     ALITO, J., concurring

SUPREME COURT OF THE UNITED STATES
 JOSHUA JOHN HESTER, ET AL. v. UNITED STATES
   ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
    STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
             No. 17–9082. Decided January 7, 2019

   The petition for a writ of certiorari is denied.
   JUSTICE ALITO, concurring in the denial of certiorari.
   The argument that the Sixth Amendment, as originally
understood, requires a jury to find the facts supporting an
order of restitution depends upon the proposition that the
Sixth Amendment requires a jury to find the facts on
which a sentence of imprisonment is based. That latter
proposition is supported by decisions of this Court, see
United States v. Booker, 543 U. S. 220, 230–232 (2005);
Apprendi v. New Jersey, 530 U. S. 466, 478 (2000), but it
represents a questionable interpretation of the original
meaning of the Sixth Amendment, Gall v. United States,
552 U. S. 38, 64–66 (2007) (ALITO, J., dissenting). Unless
the Court is willing to reconsider that interpretation,
fidelity to original meaning counsels against further ex-
tension of these suspect precedents.
                 Cite as: 586 U. S. ____ (2019)            1

                    GORSUCH, J., dissenting

SUPREME COURT OF THE UNITED STATES
  JOSHUA JOHN HESTER, ET AL. v. UNITED STATES
   ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
    STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
             No. 17–9082. Decided January 7, 2019

   JUSTICE GORSUCH, with whom JUSTICE SOTOMAYOR
joins, dissenting from the denial of certiorari.
   If you’re charged with a crime, the Sixth Amendment
guarantees you the right to a jury trial. From this, it
follows that the prosecutor must prove to a jury all of the
facts legally necessary to support your term of incarcera-
tion. Apprendi v. New Jersey, 530 U. S. 466 (2000). Nei-
ther is this rule limited to prison time. If a court orders
you to pay a fine to the government, a jury must also find
all the facts necessary to justify that punishment too.
Southern Union Co. v. United States, 567 U. S. 343 (2012).
   But what if instead the court orders you to pay restitu-
tion to victims? Must a jury find all the facts needed to
justify a restitution order as well? That’s the question
presented in this case. After the defendants pleaded
guilty to certain financial crimes, the district court held a
hearing to determine their victims’ losses. In the end and
based on its own factual findings, the court ordered the
defendants to pay $329,767 in restitution. The Ninth
Circuit affirmed, agreeing with the government that the
facts supporting a restitution order can be found by a
judge rather than a jury.
   Respectfully, I believe this case is worthy of our review.
Restitution plays an increasing role in federal criminal
sentencing today. Before the passage of the Victim and
Witness Protection Act of 1982, 96 Stat. 1248, and the
Mandatory Victims Restitution Act of 1996, 110 Stat.
1227, restitution orders were comparatively rare. But
from 2014 to 2016 alone, federal courts sentenced 33,158
2                HESTER v. UNITED STATES

                    GORSUCH, J., dissenting

defendants to pay $33.9 billion in restitution. GAO, G.
Goodwin, Federal Criminal Restitution 16 (GAO–18–203,
2018). And between 1996 and 2016, the amount of unpaid
federal criminal restitution rose from less than $6 billion
to more than $110 billion. GAO, G. Goodwin, Federal
Criminal Restitution 14 (GAO–18–115, 2017); Dept. of
Justice, C. DiBattiste, U. S. Attorneys Annual Statistical
Report 79–80 (1996) (Tables 12A and 12B). The effects of
restitution orders, too, can be profound. Failure or inabil-
ity to pay restitution can result in suspension of the right
to vote, continued court supervision, or even reincarcera-
tion. Lollar, What Is Criminal Restitution? 100 Iowa
L. Rev. 93, 123–129 (2014).
   The ruling before us is not only important, it seems
doubtful. The Ninth Circuit itself has conceded that al-
lowing judges, rather than juries, to decide the facts
necessary to support restitution orders isn’t “well-
harmonized” with this Court’s Sixth Amendment deci-
sions. United States v. Green, 722 F. 3d 1146, 1151 (2013).
Judges in other circuits have made the same point in
similar cases. See United States v. Leahy, 438 F. 3d 328,
343–344 (CA3 2006) (en banc) (McKee, J., concurring in
part and dissenting in part); United States v. Carruth, 418
F. 3d 900, 905–906 (CA8 2005) (Bye, J., dissenting).
   Nor does the government’s defense of the judgment
below dispel these concerns. This Court has held that the
Sixth Amendment requires a jury to find any fact that
triggers an increase in a defendant’s “statutory maximum”
sentence. Apprendi, 530 U. S., at 490. Seizing on this
language, the government argues that the Sixth Amend-
ment doesn’t apply to restitution orders because the
amount of restitution is dictated only by the extent of the
victim’s loss and thus has no “statutory maximum.” But
the government’s argument misunderstands the teaching
of our cases. We’ve used the term “statutory maximum” to
refer to the harshest sentence the law allows a court to
                 Cite as: 586 U. S. ____ (2019)            3

                    GORSUCH, J., dissenting

impose based on facts a jury has found or the defendant
has admitted. Blakely v. Washington, 542 U. S. 296, 303
(2004). In that sense, the statutory maximum for restitu-
tion is usually zero, because a court can’t award any resti-
tution without finding additional facts about the victim’s
loss. And just as a jury must find any facts necessary to
authorize a steeper prison sentence or fine, it would seem
to follow that a jury must find any facts necessary to
support a (nonzero) restitution order.
   The government is not without a backup argument, but
it appears to bear problems of its own. The government
suggests that the Sixth Amendment doesn’t apply to resti-
tution orders because restitution isn’t a criminal penalty,
only a civil remedy that “compensates victims for [their]
economic losses.” Brief in Opposition 8 (internal quotation
marks omitted). But the Sixth Amendment’s jury trial
right expressly applies “[i]n all criminal prosecutions,” and
the government concedes that “restitution is imposed as
part of a defendant’s criminal conviction.” Ibid. Federal
statutes, too, describe restitution as a “penalty” imposed
on the defendant as part of his criminal sentence, as do
our cases.       18 U. S. C. §§3663(a)(1)(A), 3663A(a)(1),
3572(d)(1); see Paroline v. United States, 572 U. S. 434,
456 (2014); Pasquantino v. United States, 544 U. S. 349,
365 (2005). Besides, if restitution really fell beyond the
reach of the Sixth Amendment’s protections in criminal
prosecutions, we would then have to consider the Seventh
Amendment and its independent protection of the right to
a jury trial in civil cases.
   If the government’s arguments appear less than con-
vincing, maybe it’s because they’re difficult to reconcile
with the Constitution’s original meaning. The Sixth
Amendment was understood as preserving the “ ‘historical
role of the jury at common law.’ ” Southern Union, 567
U. S., at 353. And as long ago as the time of Henry VIII,
an English statute entitling victims to the restitution of
4                HESTER v. UNITED STATES

                    GORSUCH, J., dissenting

stolen goods allowed courts to order the return only of
those goods mentioned in the indictment and found stolen
by a jury. 1 J. Chitty, Criminal Law 817–820 (2d ed.
1816); 1 M. Hale, Pleas of the Crown 545 (1736). In Amer-
ica, too, courts held that in prosecutions for larceny, the
jury usually had to find the value of the stolen property
before restitution to the victim could be ordered. See, e.g.,
Schoonover v. State, 17 Ohio St. 294 (1867); Jones v. State,
13 Ala. 153 (1848); State v. Somerville, 21 Me. 20 (1842);
Commonwealth v. Smith, 1 Mass. 245 (1804). See also
Barta, Guarding the Rights of the Accused and Accuser:
The Jury’s Role in Awarding Criminal Restitution Under
the Sixth Amendment, 51 Am. Crim. L. Rev. 463, 472–476
(2014). And it’s hard to see why the right to a jury trial
should mean less to the people today than it did to
those at the time of the Sixth and Seventh Amendments’
adoption.
  Respectfully, I would grant the petition for review.
