Today I filed this petition for rehearing en banc in the Fifth Circuit on an important crime victims’ rights issue: Are crime victims entitled to have restitution decisions affecting them announced in open court?  I hope that the Fifth Circuit will grant the petition and hold that victims, no less than criminal defendants, are entitled to see with their own eyes whether justice is being done.


This important crime victims’ rights case began nearly eight years ago, in 2006, when CITGO was charged with environmental crimes for operating two huge tanks as oil-water separators for ten years without the appropriate controls to prevent release of the well-known carcinogen benzene.  (The plant where the tanks are located is shown in this picture.) In 2007 a jury found CITGO guilty of two counts, one for each of the tanks.  After CITGO was convicted, the prosecutors identified more than one hundred persons from surrounding, impoverished areas that it believed qualified as victims under the Crime Victims’ Rights Act.  When the district court concluded that they were not victims (because they did not have expert medical testimony showing currently-manifesting cancers), Paul Pierce from Texas Legal Services Center and I petitioned the Fifth Circuit to overturn the district court’s decision on behalf of fifteen representative persons.  In September, 2012, the Fifth Circuit granted our petition for a writ of mandamus, directing a fuller review of the issue.

On remand, we filed additional pleadings explaining why these persons had been directly and proximately harmed by CITGO’s crimes — specifically because they had suffered physical ailments from breathing the fumes CITGO released over nearly ten years.  A few weeks later, the district court reversed its previous ruling, agreeing with us that the fifteen persons were “crime victims” under the Crime Victims Rights Act because of various physical harms they had suffered (e.g. vomiting, sore throats, nosebleeds, etc.).  The victims then sought restitution for medical screening to evaluate any future health harms (i.e., cancer) they might suffer as the result of CITGO releasing into their neighborhoods a dangerous chemical cocktail.

Ultimately, in early February 2013, approximately one hundred victims came for a public sentencing hearing.  They had all filed victim impact statements with the district court and expected to hear the court announce whether they would receive their requested restitution.  They left disappointed.  The district judge appeared and simply imposed the expected fine.  He then ducked out, saying he would not give an oral decision on restitution lest the victims “not really fully grasp what the ruling involves.”  The district court stated that he would hold the matter open for a further 90 days, as permitted by the restitution procedures statute.  The victims then filed an objection to the district court explained that federal law directly requires all parts of the criminal sentence – including restitution – to be announced in open court.  18 U.S.C. § 3553(c).  The victims noted that they were keenly interested in the restitution issue and that many planned to attend the Court hearing where the restitution decision will be announced. 

After disappearing for two-and-a-half months, the district judge did not publicly reappear to announce his judgment.  Instead, on the evening of April 30, 2014, the district judge merely lodged his written decision denying restitution on PACER (the federal courts’ electronic, pay-per-view, website).   Hundreds of victims who had filed victim impact statements first learned from ensuing news reports that they had been denied restitution.

Three weeks ago, Paula Pierce and I filed with the Fifth Circuit a CVRA petition for a writ of mandamus, challenging both the district court’s failure to grant the victims any restitution and the fact that it had made its ruling outside a public courtroom.  With regard to the decision’s substance, we explained that, contrary to the district court’s assertions, the victims had provided specific evidence to justify restitution.  With regard to the decision’s procedure, we argued that the district court’s action was plainly illegal under the First Amendment, the CVRA, and the congressional requirement that trial courts must announce all decisions about a criminal defendant’s sentence in public view, 18 U.S.C. § 3553(c).

Acting rapidly in light of the CVRA’s requirement for review within 72 hours,  on May 19, 2014, a panel of the Fifth Circuit (Davis, Southwick, and Higginson) released a per curiam opinion denying the victims’ mandamus petition.  Relying heavily on the “clear and indisputable error” standard associated with mandamus relief, the panel concluded that it could not say that the district court clearly and indisputably erred” in refusing to award restitution to the victims.  Turning to the district court’s failure to announce its decision in open court, the panel acknowledged that, “[t]o be sure, 18 U.S.C. § 3553(c) provides that . . .[i]f the court does not order restitution . . . the court shall include in the statement the reason therefor.’”  The panel nonetheless held that the victims “provide no authority demonstrating a clear and indisputable right, amenable to and warranting mandamus relief . . . to have such a final restitution determination . . . announced in open court after the defendant’s sentencing.”  According, the panel denied the victims’ mandamus petition.

Today, Paula Pierce and I filed petitions for panel rehearing and rehearing en banc.  We make what we think is a very straightforward argument: That American criminal justice has long proceeded from the premise that the public is entitled to see for themselves whether justice is being done.  Accordingly, judges have always had to impose sentences in open court.  In our petition we explain that the public-sentencing requirement exists not just for the benefit of convicted criminals, but also for crime victims.  The hundreds of crime victims (from impoverished, minority areas surrounding the CITGO plant, profiled here and here) were entitled to have an open court hearing where the judge public announced his decision on restitution.  This requirement should be rigorously enforced when the question is whether the victims will receive restitution to allow them access to what could be, quite literally, life-saving medical care.  We hope that the Fifth Circuit will grant one of these petitions and reconsider this important issue.