Civil Restitution For Crime Victims In Federal Court

In 1996 the United States Congress enacted the Mandatory Victims Restitution Act of 1996, which makes restitution mandatory upon a defendant’s conviction for a federal violent or property crime in which there is an identifiable victim who has directly and proximately suffered physical injury or monetary loss. Upon conviction for other federal crimes, including drug offenses, the imposition of restitution is in the discretion of the sentencing court. In instances in which restitution is imposed, the court “shall order restitution to each victim in the full amount of each victim’s losses as determined by the court and without consideration of the economic circumstances of the defendant.” In determining the manner in which restitution is to be paid, the court considers the defendant’s resources, assets, earning potential, and obligations.
A defendant’s liability to pay restitution lasts twenty years from the entry of judgment or release from imprisonment, whichever is later. The Attorney General of the United States is responsible for the collection of unpaid restitution and is authorized to use the general collection means available to enforce civil judgments, such as liens and garnishment. The court can utilize a variety of sanctions upon a defendant’s default of his restitution obligations, including modification or revocation of probation or supervised release, resentencing, contempt, injunctive relief, and forced sale of property.
Federal reviewing courts have actively interpreted the scope of federal restitution and supervised its implementation. Reviewing courts rejected Fifth Amendment due process challenges to the restitution statute, At the outset, appeals courts noted that the degree of due process required at sentencing is not the same as that required at trial. Because the sole interest being protected at sentencing is the right not to be sentenced on the basis of invalid or inaccurate information, only that degree of protection necessary to ensure that sentencing judges are sufficiently informed to appropriately exercise their sentencing authority is required. The considerations required by the restitution statutes, as well as the protections given to a defendant by Federal Rule of Criminal Procedure 32 to challenge presentence information, to make a statement in his own behalf, and to present any information in mitigation of punishment, provide a sufficient basis to ensure a defendant’s due process rights regarding restitution ordered at sentencing.
Reviewing courts also rejected Fifth Amendment equal protection and Eighth Amendment cruel and unusual punishment claims that restitution may not be imposed on defendants who are indigent at sentencing. These courts noted that because the restitution statutes allow an extended period of time within which to satisfy a restitution order, indigence at sentencing is not a bar to restitution.
Claims that the restitution procedures transformed the judicial sentencing proceeding into a “juryless” civil proceeding in violation of the Seventh Amendment were also rejected. Appellate courts characterized restitution as a form of punishment that serves recognized punishment goals of deterrence, rehabilitation, and retribution. These courts noted that the Constitution does not require a jury to determine any aspect of a defendant’s sentence. Although the restitution sanction has certain civil aspects and consequences it was found to be fundamentally different from a civil adjudication in that it can only be imposed after a determination of criminal guilt, the victim is not party to the sentencing proceeding, and factors such as the defendant’s financial condition are required to be considered concerning its imposition or implementation. Reviewing courts concluded that the civil aspects of restitution do not transform a criminal sentence into a civil proceeding-requiring act finding by a jury.
The federal courts have matched Congress’ increase in the number of victims eligible for restitution with a generally expansive interpretation of the types of eligible victims and victim losses. In addition to the human, direct victims eligible for restitution, reviewing courts have found restitution warranted for some indirect human crime victims, such as family members or incidental persons suffering losses as a result of an offender’s commission of crimes against direct victims. Courts have also upheld restitution awards to entities directly and sometimes indirectly victimized by defendants, as illustrated by restitution awards to a computer company for an offender’s fraudulent acquisition of software as well as to the Federal Deposit Insurance Corporation, as insurer and receiver of a failed bank victimized by an offender.
Appellate courts have also upheld a wide range of amounts and types of restitution. For example, restitution orders in the millions of dollars have been upheld when supported by evidence of victim loss. In addition to direct losses resulting from a criminal act, restitution for various ancillary costs associated with the crime has also been upheld, including pre-judgment and post-judgment interest. Thus, as authorized by Congress and interpreted by the federal courts, the scope of the federal restitution provisions can be significant.