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CRIMINAL RESTITUTION IMPROVEMENT

ACT OF 2006

HEARING

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

ON

H.R. 5673

JUNE 13, 2006

Serial No. 109–116

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://judiciary.house.gov 

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

BOB INGLIS, South Carolina 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL ISSA, California 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

CHRIS VAN HOLLEN, Maryland 

DEBBIE WASSERMAN SCHULTZ, Florida

PHILIP G. KIKO, General Counsel-Chief of Staff 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

HOWARD COBLE, North Carolina, Chairman

DANIEL E. LUNGREN, California 

MARK GREEN, Wisconsin 

TOM FEENEY, Florida 

STEVE CHABOT, Ohio 

RIC KELLER, Florida 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

LOUIE GOHMERT, Texas 

ROBERT C. SCOTT, Virginia 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ANTHONY D. WEINER, New York

MICHAEL VOLKOV, Chief Counsel 

DAVID BRINK, Counsel 

CAROLINE LYNCH, Counsel 

JASON CERVENAK, Full Committee Counsel 

BOBBY VASSAR, Minority Counsel 

(III)

C O N T E N T S 

JUNE 13, 2006

OPENING STATEMENT 

Page 

The Honorable Howard Coble, a Representative in Congress from the State 

of North Carolina, and Chairman, Subcommittee on Crime, Terrorism, and 

Homeland Security ............................................................................................... 1

The Honorable Robert C. Scott, a Representative in Congress from the State 

of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, 

and Homeland Security ....................................................................................... 1

The Honorable Steve Chabot, a Representative in Congress from the State 

of Ohio, and Member, Subcommittee on the Constitution ................................ 3

WITNESSES 

Mr. Douglas Beloof, Director, National Crime Victim Law Institute, Lewis 

and Clark Law School 

Oral Testimony ..................................................................................................... 6

Prepared Statement ............................................................................................. 7

Mr. Daniel Levey, President, Parents of Murdered Children, Inc. 

Oral Testimony ..................................................................................................... 10

Prepared Statement ............................................................................................. 12

Mr. James Felman, Partner, Kynes, Markman & Felman, P.A. and Co-Chair, 

Committee on Corrections and Sentencing 

Oral Testimony ..................................................................................................... 23

Prepared Statement ............................................................................................. 25

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Robert C. Scott, a Representative in 

Congress from the State of Virginia, and Ranking Member, Subcommittee 

on Crime, Terrorism, and Homeland Security ................................................... 58

Prepared Statement of the Honorable Shelia Jackson Lee, a Representative 

in Congress from the State of Texas .................................................................. 60

Prepared Statement of the Honorable Steve Chabot, a Representative in 

Congress from the State of Ohio ......................................................................... 64

(1)

CRIMINAL RESTITUTION IMPROVEMENT

ACT OF 2006

TUESDAY, JUNE 13, 2006

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

COMMITTEE ON THE JUDICIARY, Washington, DC.

The Subcommittee met, pursuant to call, at 9:30 a.m., in Room 

2141, Rayburn House Office Building, the Honorable Howard Coble 

(Chairman of the Subcommittee) presiding. 

Mr. COBLE. Good morning, ladies and gentlemen. We welcome 

you to this important hearing before the Subcommittee on Crime, 

Terrorism, and Homeland Security to examine the Criminal Restitution Improvement Act of 2006 introduced by the distinguished 

gentleman from Ohio, our colleague and Member, Mr. Chabot. 

As a strong proponent of victims rights, I’m troubled by recent 

reports indicating that a large percentage of restitution is uncollected. Restitution, it seems to me, plays a critical role in the deterrence and rehabilitation of offenders by encouraging them to compensate their victims; yet restitution remains one of the most 

under-enforced victims rights within the criminal justice system. 

Crime victims suffer not only physical and emotional trauma, but 

financial loss as well. The Justice Department estimates the tangible cost of crime, including medical expenses, lost wages and victim assistance, to be approximately $105 billion a year; unfortunately, most of this is not collected. 

Between 1996 and 2002, the amount of outstanding criminal debt more than quadrupled, from roughly 6 billion to almost $25 billion. 

The Criminal Restitution Improvement Act before us today enhances the Federal restitution system by providing additional tools 

to the Government, probation department, and the courts to assist 

with collection of outstanding restitution. 

I commend Mr. Chabot—and I think he’ll be with us subsequently—for his dedication to crime victims and his hard work on 

this legislation. And I note for the record that the Justice Department has indicated its support for this legislation. 

I look forward to hearing from our witnesses today. And now I’m 

pleased to recognize the distinguished gentleman from Virginia, the 

Ranking Member of this Subcommittee, Mr. Bobby Scott. 

Mr. SCOTT. Thank you, Mr. Chairman. I’m pleased to join you in 

convening the hearing on the Criminal Restitution Improvement 

Act of 2006. We need to see, however, if this bill will actually increase restitution, as the name implies. 

2

Restitution is already mandated in most instances of victim loss 

in Federal criminal cases. As the GAO reported in its 2001 study 

on the issue, the Mandatory Victims Restitution Act of 1996, requiring the court to order full restitution to each victim in the full 

amount of each victim’s losses without regard of the offender’s economic situation, has not resulted in significantly more restitution 

being collected, but only in a dramatic increase in the balance of 

reported uncollected criminal debt. The fact is the vast majority of 

criminal defendants are indigent, requiring the appointment of a 

public defender to represent them. 

At the same time, the GAO report indicated that even in the few 

cases where the defendant does have some assets, it is difficult to 

collect restitution noting that, quote, ‘‘criminal defendants may be 

incarcerated or deported, with little earning capacity.’’ They often 

spend money on attorneys who are paid up front. Their assets, acquired through criminal activity, may be seized by the Government 

prior to conviction; thus, by the time fines and restitution are assessed, offenders may have no assets left for making payments and 

restitution. 

If the vast majority of offenders are broke when they come to 

prison, going out and trying to find a job with a felony conviction 

is not likely to improve their ability to have money to meet their 

own needs to survive, and the survival of their dependents, and 

pay restitution. 

Everyone is in favor of more victim restitution; however, tying it 

to the false hope of squeezing more restitution out of destitute prisoners is not likely to result in the collection of more restitution, but 

only increasing the frustration of victims, offenders, and the criminal justice system in general. 

There is an old English saying that you can’t squeeze blood out 

of a turnip. Mandating restitution in even more cases where it 

makes no sense, and insisting on collection efforts possibly for the 

life of the offender upon his or her release, will not result in more 

restitution being collected but only in more frustration, additional 

unproductive costs, financial or otherwise, for all involved. 

It certainly has been my observation that restitution works best 

when it is an alternative to incarceration and the loss of employment and assets that accompany such incarceration. Even more 

dramatically but realistically, placing more emphasis on mandating 

restitution where it makes no sense than the system already does 

may actually result in more failures of offenders to succeed upon 

their return, which we know will likely result in more victimizations. 

As you know, Mr. Chairman, our counsels are working diligently 

on developing a comprehensive prisoner reentry program to reduce 

the tragic reality that more than two-thirds of the released offenders end up back in prison within 3 years of release. Clearly mandating more restitution where it doesn’t make any sense will even 

make that effort more difficult. 

Ironically, one program that does allow a modicum of restitution 

to be paid by prisoners, about $3 million a year, the Federal Prison 

Industries Program, is under siege in the Judiciary Committee in 

Congress, and it’s been substantially reduced in terms of the numVerDate 0ct 09 2002 14:44 Aug 15, 2006 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\061306\28198.000 HJUD2 PsN: 28198
3

ber of inmates participating, and could be eliminated if some have 

their way. 

We’re all in favor of victim restitution actually being paid to victims; however, I do not believe, Mr. Chairman, that we should condition the payment of more victim restitution on the false hope of 

mandating more of it from a destitute group of offenders at the cost 

of more frustration and unproductive effort for all concerned. Instead, I believe we should bite the bullet, establish a victims restitution fund from Federal appropriations, and that way victim restitution is neither dependent upon the vagaries of the offender’s 

ability to pay or the Government’s collection efforts. 

We should then refocus the Federal victim restitution collection 

efforts on areas where it will have more impact, such as going after 

the assets of white collar offenders who profit handsomely from 

their crimes and have a means of paying. In a rare instance where 

money can be collected from restitution that has been paid to victims, the additional collections can also be paid to him or her. 

I look forward to the testimony of our witnesses, and on the issue 

of more mandating victim restitution and working with you, Mr. 

Chairman, on developing ways where we can actually ensure more 

restitution rather than creating false hope that may be provided by 

this bill. 

Thank you, Mr. Chairman. 

Mr. COBLE. I thank the gentleman from Virginia. 

Mr. COBLE. We normally restrict opening statements to the 

Chairman and the Ranking Member, but the primary sponsor of 

this bill has requested time to briefly give an opening statement. 

And I recognize the distinguished gentleman from Ohio, Mr. 

Chabot. But meanwhile, we have been joined as well by the distinguished gentleman from Massachusetts, Mr. Delahunt. Good to 

have you here, Bill. 

Mr. Chabot.

Mr. CHABOT. Thank you, Mr. Chairman. 

I want to thank you, Mr. Chairman, for holding this hearing on 

this important issue. The treatment of crime victims is an area 

that I felt for a long time deserves more attention and, unfortunately, is too often overlooked in the criminal justice system. 

I want to also say that I agree with one of the things that the 

Ranking Member mentioned about Federal prison industries. I 

think that it is an area that is under some assault right now, and 

I think we have to be very careful in how we move forward with 

that, because putting prisoners to work, I think, is good for them, 

it’s good for the public, it’s good for maintaining control at the prisons. And any effort which would undermine that, I think, would be 

a mistake. We find that rates of recidivism, for example, are improved when prisoners have a skill, because most of these folks are 

going to be coming out someday. So I want to thank the distinguished Member who didn’t hear what I said, but I commended 

him on his——

Mr. SCOTT. I was listening. 

Mr. CHABOT. I was saying something nice about you. 

Mr. SCOTT. I heard about prison industries. 

Mr. CHABOT. So—thank you. 

4

And secondly, last year a number of us worked on the Justice for 

All Act, and I was very pleased that that particular piece of legislation did pass and that we were able to include in there protections 

for crime victims. 

And I had originally been working for years on trying to pass a 

restitutional amendment for victims rights, but this bill, although 

it was statutory, I think does go in the right direction and it provides crime victims with what in essence is a bill of rights to truly 

provide crime victims with dignity and respect during an established and enforceable set of rights. 

This year I’d like to continue the progress that Congress has 

made, and on the 10th anniversary of the Federal Mandatory Victims Restitution Act of 1996, I want to increase the collective efforts and enact policies to help law enforcement make victims 

whole. 

This week, I plan to introduce the Restitution Improvement Act 

of 2006, the hallmark of the bill being that restitution will be mandatory for all offenses with an identifiable victim suffering a pecuniary loss. Additional highlights include awarding restitution for 

all identifiable persons or entities, awarding attorneys fees associated with the collection of restitution, enhanced notification by probation officers of victims loss, and informing victims of the provisions in the presentence report that assess the ability of the defendant to pay restitution, that prohibit early termination of supervised release when a defendant has an outstanding restitution balance, and would allow for the extension of the supervised release 

for the limited purposes of collecting restitution, would require that 

restitution is due immediately instead of automatically establishing 

a payment plan. 

Defendants are jointly and severally liable for the total amount 

of victims loss. It would allow the Government to seek restitution 

from the defendant above the payment schedule when the Government discovers unreported assets. 

And finally, it amends the Son of Sam law, the law that prohibits 

criminals from profiting from their crime. So it would withstand 

further judicial review in accordance with the Schuster case. 

Restoring crime victims to the position they were in as much as 

possible before the crime—otherwise known as restitution—is beneficial to both the victim and to the offender. Studies have shown 

that criminals who paid a higher percentage of their ordered restitution have lower recidivism rates. Most importantly, the loss 

crime victims experience must be publicly recognized by our criminal justice system. This recognition helps victims heal emotionally. 

Financially these victims are owed compensation to move forward 

with their life. For example, at the Federal level, some of the most 

prevalent fraud cases involve the elderly, and it’s essential that we 

recover restitution for some of society’s most vulnerable citizens, 

our elderly, who oftentimes have lost a lifetime worth of savings. 

The way crime victims are treated within the criminal justice 

system is of paramount importance. This legislation will help to decrease the $40 billion criminal debt balance that is owed to victims. 

So $40 billion has been ordered to be made in restitution which has 

gone unpaid, and it will improve the approximately 87 percent of 

5

restitution that currently goes uncollected every year. So 87 percent goes uncollected. 

I look forward to hearing from our panel of witnesses, and want 

to publicly recognize and thank Daniel Levey, who is representing 

the Parents of Murdered Children, who happen to be 

headquartered in my district in Cincinnati, and I had the opportunity to tour that recently. So thank you, and thank all the witnesses. 

Mr. COBLE. Mr. Chabot, since Mr. Scott was listening, I’m 

pleased that you were not slandering his good name earlier—— Mr. CHABOT. Not today. 

Mr. COBLE. You said good things about him. 

Gentlemen, it is the practice of the Subcommittee to swear in all 

witnesses appearing before it. So if you will also please stand and 

raise your right hands. 

[Witnesses sworn.] 

Mr. COBLE. Let the record show that each of the witnesses answered in the affirmative. 

We have three distinguished witnesses with us today. Our first 

witness, Mr. Douglas Beloof, is Executive Director of the National 

Crime Victim Law Institute at Lewis and Clark College. Professor 

Beloof has written the only case book on the subject of crime victim 

law, entitled ‘‘Victims in Criminal Procedure,’’ which won a national award for writing in Victimology and the Law. He has served 

as a prosecutor and a criminal defense attorney, as well as practiced torte law as a plaintiff’s and defense attorney, and has written amicus briefs to appellate courts nationwide. 

Professor Beloof received his undergraduate degree from the University of California at Berkeley, and his JD from the Northwestern School of Law at Lewis and Clark College. And that’s in 

Portland, is it not, Professor? 

Mr. BELOOF. Yes, sir. 

Mr. COBLE. Our second witness is Daniel Levey, President of the 

National Organization of Parents of Murdered Children. Mr. Levey 

has been a tireless advocate for victims rights, having experienced 

firsthand the suffering of victims’ families after the senseless murder of his brother in November 1996. He is on the Board of Directors of the National Organization For Victim Assistance, is a founding member of the Arizona Voice for Crime Victims, and actively 

participates in numerous other victims rights associations. Additionally, Mr. Levey serves as Adviser to the Governor for Victims 

and as an administrator with the Arizona Department of Corrections Office of Victims Services. 

Mr. Levey holds a bachelor’s degree in administration of justice 

from the Arizona State University and a master’s degree in educational leadership from Northern Arizona University—at Flagstaff, I presume, Mr. Levey. 

Our third witness is Mr. James Felman, partner at Kynes, 

Markman & Felman, P.A. Mr. Felman currently cochairs the American Bar Association’s Committee on Correction and Sentencing, 

and served as President of the Tampa Bay Chapter of the Federal 

Bar Association. He is also a member of the Sentencing Initiative 

of the Constitution Project. Mr. Felman is the author of various numerous publications on the issue of sentencing. He received a bachVerDate 0ct 09 2002 14:44 Aug 15, 2006 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\061306\28198.000 HJUD2 PsN: 28198
6

elor’s degree in history from Wake Forest University, and both a 

master’s in philosophy and a JD from Duke University. Glad to see 

the North Carolina connection, Mr. Felman. 

Gentlemen, we operate under the 5-minute rule, as you all have 

previously been told. So when you see the amber light appear before you in the panel on your table, that is your warning to prepare 

to wrap it up. When the red light appears, of course, the 5 minutes 

have elapsed. So if you can confine your statements to on or about 

5 minutes, it will be appreciated. 

And, Mr. Beloof, we will start with you. 

TESTIMONY OF DOUGLAS BELOOF, DIRECTOR, NATIONAL 

CRIME VICTIM LAW INSTITUTE, LEWIS AND CLARK LAW 

SCHOOL 

Mr. BELOOF. Thank you for the opportunity to testify, Mr. Chair 

and honorable Committee Members. I’m here to testify in support 

of the Criminal Restitution Improvements Act of 2006, which 

cleans up and improves the Crime Victims Restitution Act of 1996. 

My name is Doug Beloof, I’m a law professor, and I direct the 

National Crime Victim Law Institute, which is a national law organization founded to support crime victim lawyers around the country. 

Mandatory restitution and procedures that maximize the potential for collection of restitution are among the most critical laws for 

crime victims. Of course, receiving some recompense for the victim’s loss resulting from the criminal harm is important and should 

not be understated. It would, however, be shortsighted to view this 

as the only purpose of restitution. More than any other condition 

of sentencing, restitution comes the closest to being personal to the 

victim. It is also of great significance for the victim to have the 

judge presiding over the sentence acknowledge, as the representative of the Government, that the victim has in fact been financially 

harmed and to have the convict who intentionally inflicted the 

harm be held in judgment for the full amount of restitution. 

For victims, this is a critical affirmation, a moment when the 

criminal justice system stands by the victim. In mandatory and full 

restitution, the message is sent to the victim that the victim’s loss 

is officially recognized and that responsibility for that loss is 

squarely placed where it belongs: on the convict. 

To be sure, it is improbable that many or maybe even most victims of crime will receive full and complete restitution from their 

offender. However, this point should not detract from the other important functions of full and mandatory restitution or from the effort to obtain that full and complete restitution from the offender. 

The ordering of full and mandatory restitution also serves important penalogical functions. For the first time, the defendant is confronted with the reality of the financial devastation he has 

wrought. Less than mandatory and full restitution sends the message that crimes can be committed for pennies on the dollar. When 

a judge orders restitution, the message to the offender and to the 

victim—or when a judge orders reduced restitution—excuse me—

the message to the offender and the victim is that the court does 

not care enough about the victim’s harm to acknowledge the full 

extent of the defendant’s responsibility. 

7

Moreover, in standing by the victim after the conviction of the 

defendant by ordering full and complete restitution, it is important, 

to the extent practically possible, that mandatory restitution laws 

are drafted to facilitate the ordering and collection of comprehensive restitution. This maximizes the possibility of recovery. For 

these and other reasons, I strongly support the Criminal Restitution Improvements Act of 2006. 

The central judicial objection to the original legislation underlying this bill, the Crime Victim Restitution Act of 1996, was the 

fear that the sky would fall upon the judiciary because that legislation would transform Federal courts into collection agencies. Of 

course, experience after the bill’s enactment has shown that the 

sky has not fallen. Federal courts have not been overwhelmed with 

restitution matters. Nevertheless, the present act laudably seeks to 

reduce the restitution burden upon the courts by facilitating the 

collection of restitution by executive and administrative agencies. 

The judicial conference testimony in 1995 was concerned that the 

length and complicated nature of assessing the harm, such as mail 

fraud schemes which can involve multitudes of victims, would be 

difficult for the courts to meet. The present act seeks to mitigate 

that judicial concern significantly. If there are substantial practical 

problems in ordering restitution, under this improvement act the 

courts are only required to order restitution to the best of their 

ability. 

Misdemeanor case disposition by the court can potentially be 

streamlined as legislation provides that restitution may be ordered 

in lieu of any other penalty. 

Moreover, as communications between various Government agencies are improved under the act, ultimately these improved communications will facilitate the court’s restitution tasks. 

To be sure, the provisions that supervised release ends only after 

restitution obligations are met would have the potential to increase 

the supervision responsibilities of courts, except that the bill dramatically limits the function of that ongoing supervision simply to 

compliance with the restitution order. It is fitting and proper to 

hold defendants accountable in this way, nor does it impose an impossible burden upon them. 

Mr. COBLE. If you will suspend just a moment. The panel on your 

table is malfunctioning. So what I may do, folks, I may just tap 

when the amber light—but you can go ahead and wrap up, Mr. 

Beloof. 

Mr. BELOOF. Thank you, sir, very much. 

The Supreme Court has held that incarceration is not available 

for sanctioning failure to pay if the reason for nonpayment is indigence. Thus, defendants are sheltered from failure to meet payment schedules where it is impractical to do so. 

Thank you, Mr. Chairman. 

Mr. COBLE. Thank you, Mr. Beloof. 

[The prepared statement of Mr. Beloof follows:]

PREPARED STATEMENT OF PROFESSOR DOUGLAS E. BELOOF

Mr. Chair and Honorable Committee Members, 

Thank you for the opportunity to testify in support of the ‘‘Criminal Restitution 

Improvements Act of 2006.’’ My name is Douglas E. Beloof. I am a law professor 

8

at Lewis & Clark Law School and the Director of the National Crime Victim Law 

Institute. 

Mandatory restitution and procedures that maximize the potential for collection 

of restitution are among the most critical laws for crime victims. Of course, receiving some recompense for the victims’ losses resulting from the criminal harm is important. However, it would be shortsighted to view this as the only purpose of restitution. More than any other condition of sentencing, restitution comes closest to 

being personal to the victim. It is also of great significance for a victim to have the 

judge presiding over the sentencing acknowledge that the victim has in fact been 

financially harmed and to have the convict who inflicted the harm be held in judgment for the full amount of restitution. 

For victims, this order is a critical affirmation—a moment when the criminal justice system stands by the victim. In mandatory and full restitution, the message is 

sent to the victim that the victim’s loss is officially recognized and that responsibility for that loss is squarely placed where it belongs. To be sure, it is improbable 

that many or even most victims of crime will receive full restitution from their offender. However, this point should not detract from these other important functions 

of full and mandatory restitution. 

The ordering of full and mandatory restitution serves an important penological 

function as well. For the first time, the defendant is confronted with the reality of 

the financial devastation he has wrought. Less than mandatory and full restitution 

sends the message that crimes can be committed for pennies on the dollar. When 

a judge orders reduced restitution, the message to the offender (and the victim) is 

that the court does not care enough about the victims’ harm to acknowledge the full 

extent of the defendant’s responsibility. 

Moreover, in standing by the victim after the conviction of the defendant by ordering full and complete restitution, it is important that, to the extent practically possible, mandatory restitution laws are drafted to facilitate the ordering and collection 

of comprehensive restitution. This maximizes the possibility of some recovery. 

For these, and other, reasons I strongly support the ‘‘Criminal Restitution Improvements Act of 2006.’’ The central judicial objection to the original legislation underlying this bill (The ‘‘Crime Victim Restitution Act of 1995’’) was the fear that the sky would fall in on 

the judiciary because that legislation would ‘‘transform federal courts into ‘collection 

agencies.’ ’’ Judicial Conference of the United States, Statement of Judge Marianne 

Trump Barry, Committee on the Judiciary, United States Senate on S. 173 The 

Crime Victims Restitution Act of 1995. November 8, 1995, at page 10. (hereinafter 

Judicial Conference Testimony). Of course, experience after the bill’s enactment has 

shown that the sky has not fallen. Federal Courts have not been overwhelmed with 

restitution matters. Nevertheless, the present Act laudably seeks to reduce the restitution burden upon the courts, by facilitating the collection of restitution by executive and administrative agencies. 

The Judicial Conference testimony in 1995 was concerned that ‘‘the length and 

complicated nature of assessing the harm, such as mail fraud schemes, which can 

involve multitudes of victims, can be staggering, and quantifying the emotional 

damage or loss will be extraordinarily difficult.’’ Judicial Conference Testimony, at 

Page 9. The present Act mitigates that concern significantly. If there are substantial 

practical problems in ordering restitution, under the Improvement act courts are 

only require to order restitution ‘‘to the best of their ability.’’ 3663(E). 

Misdemeanor case disposition can potentially be streamlined by the Courts as the 

legislation provides that ‘‘restitution may be ordered in lieu of any other penalty.’’

Communications between various government agencies are improved under the 

act. ‘‘The prosecutor must provide the probation officer with any information regarding restitution. Sec. 3664(C). In turn the Probation officer is more succinctly directed to include restitution in the pre-sentence report. Ultimately, these improved 

communications will facilitate the Courts’ restitution tasks. 

To be sure, the provisions that supervised release ends only after restitution obligations are met would have the potential to considerably increase the supervision 

responsibilities of the Courts, except that the bill dramatically limits the function 

of that ongoing supervision to compliance with the restitution order. Sec. 3664(m) 

& Section. 4. It is fitting and proper to hold defendants accountable in this way. 

Nor does it impose some impossible burden upon them. The Supreme Court has held 

that incarceration is not available for sanctioning failure to pay if the reason for 

non-payment is indigence. Thus, defendants are sheltered from failure to meet payment schedules where it is impractical to do so. Moreover, such ongoing responsibility of the defendant brings restitution procedures into conformity with the intent 

of Congress expressed in prohibiting the discharge of criminal restitution in bankruptcy courts. In essence, this Act achieves similar public policy goals. 

9

The Courts fears that mandatory restitution would overwhelm the Courts has 

never been realized. The modest changes to the mandatory restitution law included 

in this Restitution Improvement Act, improve, rather than diminish the efficiency 

of the earlier Act. 

Moreover, to prioritize concerns that the collection process may overburden government, is a mis-prioritization of fundamental values. The only other alternative 

to government responsibility would be to place the burden of obtaining a judgment 

of restitution and collection of restitution upon the victim. This is an unacceptable 

alternative. Congress recently passed by overwhelming votes the ‘‘Crime Victims 

Rights Act.’’ 18 U.S.C. 3771. A fundamental principle of providing victims’ rights is 

that, to the extent possible, victims should not be harmed by either government 

processes or the failure of government to provide process. This Act, the Restitution 

Improvement Act of 2006, like the Crime Victims’ Restitution Act of 1995, embodies 

the proper prioritization of values. The Act continues in the tradition of the 1995 

Act by correctly prioritizing victims of crime and de-prioritizing government inconvenience and accommodations to the criminal convict who intentionally inflicted the 

loss. 

The Act also increases the scope of restitution by providing for mandatory restitution for all federal offenses. This is a particularly important improvement. On the 

one hand, to grant a victim of crime ‘‘A’’ restitution, while, on the other hand denying restitution to the victim of crime ‘‘B,’’ is simply untenable. Such discrimination 

is ultimately based on random circumstances beyond the victim’s control. Moreover, 

inclusion of all victims under restitution laws is consistent with the CVRA, which 

grants all victims of crime rights. The CVRA defines victims as, ‘‘a person directly 

and proximately harmed as a result of the commission of a Federal offense...’’

18 U.S.C. 3771(e). The CVRA goes on to provide that ‘‘a crime victim has the following rights: . . . the right to full and timely restitution as provided by law. 18 

U.S.C. 3771(a)(6). Expanding the scope of restitution under the Restitution Act of 

1995 eliminates existing conflicts with the recently enacted CVRA. 

In closing, may I suggest that there are a few ways in which the bill can be improved. 

First and foremost, I strongly concur with the suggestion by the United States Department of Justice that provides for preservation of defendants’ assets. See Letter 

to the Honorable Dennis Hastert, Speaker, from William Mochschella, Asst. Attorney General (May 25, 2006) Under current law there are no statutory provisions 

that require a defendant charged with crime to preserve his assets for restitution. 

Prosecutors have no way to preserve these assets, even if they are proceeds from 

the crime itself. The effective collection of restitution is substantially impaired as 

a result. See Criminal Debt: Court Ordered Restitution Amounts far Exceed Likely 

Collections For Crime Victims in Selected Financial Fraud Cases, GAO-05-80. (January 2005). Ironically, it is easier to protect assets in a civil suit than a criminal 

action. See, Federal Debt Collections Procedures Act of 1990, 28 U.S.C. et Seq. Preservation of assets is already possible in criminal forfeiture cases. 21 U.S.C. Sec. 

853(e)(1). 

Second, until restitution is met, victims should be able to claim the criminal loss 

as a loss to the I.R.S. I recently had an tax attorney call me and identify that the 

IRS was denying a loss claim because restitution had been ordered, even though 

there was no actual recovery. I expect it was never the intent of Congress, in providing for restitution, to give the I.R.S. a rationale for denying a tax loss deduction 

where restitution had not been forthcoming. This problem will only get worse if not 

corrected, because now restitution orders will exist until they are met by the defendant. In other words, a victim might never be able to claim the loss. 

Third, courts need the discretion to order restitution for a broad array of losses. 

I suggest that 3663(C) include language such as: ‘‘In the discretion of the court, restitution may include any amount for any loss that restores the person, entity or estate to the position that would have existed had the defendant not committed the 

crime.’’

Fourth, The Act refers to loss to all identifiable ‘‘parties.’’ The word ‘‘parties’’ is 

a term of art referring to the prosecution and defense. This could be a source of confusion. Better language is ‘‘each identifiable person, entity or estate.’’

In conclusion, the Restitution Improvements Act of 2006 is a solid bill and I 

wholeheartedly support it. 

Thank you for the opportunity to appear before you today.

Mr. COBLE. Mr. Levey. 

10

TESTIMONY OF DANIEL LEVEY, PRESIDENT, PARENTS OF 

MURDERED CHILDREN, INC. 

Mr. LEVEY. Good morning, Mr. Chairman and distinguished 

Members of the Subcommittee. My name is Dan Levey, and I come 

before you as the current National President for Parents of Murdered Children, which is also for the friends and family of those 

that have died by violence. 

I am pleased to be here on behalf of POMC to give input on this 

important piece of Federal legislation. I would like to acknowledge 

and thank Ohio Representative Steve Chabot, who has been a longtime supporter of victims rights and of Parents of Murdered Children. It is no surprise that Representative Chabot is a sponsor of 

this important piece of Federal legislation which aims to improve 

the collection enforcement of restitution for victims of Federal 

crimes. 

I am also the Adviser for Victims to Arizona Governor Janet 

Napolitano, which I’m proud to say is the first position of its kind 

in any Governor’s office in the Nation. And I’m the current National Vice President of Administration for the National Organization for Victim Assistance, which is based here in Washington, D.C. 

However, my most important credential is one I’d rather not 

have. I lost a loved one to murder. In the early morning hours of 

November 3, 1996, my life as I knew it changed forever. Like so 

many victims who receive a phone call or a knock on the door with 

news that fundamentally alters their existence, my sister-in-law 

called to tell me that my brother, Howard, had been shot while 

waiting for his friends to show up for their weekly morning basketball game. My brother was a well-educated husband, father, son, 

and brother and friend to many. Howard was shot by two gang 

members at point-blank range, thrown out of his car and left to die. 

I learned firsthand the harsh reality of what it’s like to have a 

loved one murdered, and have since dedicated my life’s work in 

memory of my beloved brother. 

It is with this experience and background that I come before you 

to speak on the importance of this piece of legislation. 

Parents of Murdered Children, by way of background, was founded by Charlotte and Rob Hullinger in 1978 in Cincinnati, Ohio, 3 

months after their daughter Lisa was murdered. POMC is 

headquartered in Cincinnati, Ohio, and is the only national selfhelp organization designed solely to offer emotional support and information about surviving the murder of a loved one. And POMC 

has grown from a small organization in the Hullinger’s basement 

to a national organization with over 60 chapters throughout the 

United States, Canada, and Puerto Rico and provides support to 

over 100,000 survivors each year. 

Restitution is the fundamental need of crime victims. Its importance for victims with respect to financial as well as psychological 

recovery from the aftermath of crime cannot be overstated. Being 

a victim of crime, especially a violent crime, leaves a devastating 

impact on victims who cannot put a price tag on human life, and 

there are no financial remunerations that can ever replace what 

victims have lost. However, restitution holds offenders accountable, 

and, when paid, helps offset the economic loss experienced by the 

victim who is left with medical bills, funeral costs and other exVerDate 0ct 09 2002 14:44 Aug 15, 2006 Jkt 000000 PO 00000 Frm 00014 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\061306\28198.000 HJUD2 PsN: 28198
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penses. In some cases a murder takes away the primary breadwinner, leaving no way to even pay rent. 

Restitution is critical to crime victims because it assists them in 

recovering the economic losses that resulted from criminally injurious conduct. It’s a vital part of the criminal justice system because it offers victims a sense of justice and holds offenders accountable. 

Payment of restitution promotes the active participation of offenders and victims in the justice process. It shifts the focus of justice system interventions and makes them victim-centered rather 

than offender-centered. Restitution can be an important mechanism for helping offenders understand the full impact of their 

criminal behavior on victims. The offender should be held accountable for restoring the victim and the community as much as possible to their pre-offense economic condition. Restitution is the primary tool for accomplishing this goal. 

It is for these reasons that 10 years ago Congress passed the 

Mandatory Victims Restitution Act. In passing that act, Congress 

intended to, quote, ‘‘ensure that the loss to crime victims is recognized and they receive the restitution they are due,’’ end quote, as 

well as to ensure the offender realizes the damage caused by the 

offense and pays the debt owed to the victim. This was critical legislation, but we must do more and better. 

The victim is the only person in the entire criminal justice system process that did not choose to be here, and the victim is the 

one with the most at stake. Victims should never be surprised by 

a system that is designed to provide them justice. Issues arising 

with offender nonpayment or late payment should be shared with 

the victim within the confines of confidentiality. 

This Criminal Restitution Improvement Act of 2006 would provide mandatory restitution for all Federal offenses, which we support. This is an improvement to current laws; it provides mandatory restitution for all Federal offenses. The act enables the victim 

to obtain restitution for losses incurred as part of the criminal episode and not just from the convicted offense. 

In closing, I’d just like to read a quote that I have on my office 

wall, it’s from the great Nobel Prize-winning author and Holocaust 

survivor Elie Wiesel, who said, ‘‘We must take sides. Neutrality 

helps the oppressor, never the victim. Silence encourages the tormenter, never the tormented.’’ It’s time that we are no longer silent 

when it comes to collection and enforcement of restitution. Thank 

you. 

Mr. COBLE. Thank you, Mr. Levey. 

[The prepared statement of Mr. Levey follows:]

12

PREPARED STATEMENT OF DANIEL LEVEY


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Mr. COBLE. And Mr. Felman, I’m advised now that the panel is 

functioning properly, so when the amber light appears, that’s your 

1-minute warning. Good to have you, Mr. Felman. 

TESTIMONY OF JAMES FELMAN, PARTNER, KYNES, MARKMAN 

& FELMAN, P.A. AND CO-CHAIR, COMMITTEE ON CORRECTIONS AND SENTENCING 

Mr. FELMAN. Thank you, Mr. Chairman, Ranking Member Scott, 

other distinguished Congressmen, it’s an honor to have this opportunity to speak to you today about this important issue of restitution. 

As a practicing criminal defense attorney in the trenches of our 

criminal justice system on a daily basis, I have concerns about the 

bill’s provisions. 

I cannot agree that it is a good idea to expand mandatory restitution without regard for the defendant’s actual ability to pay it. The 

bill would needlessly inhibit rehabilitation by offenders who are attempting to reenter society after often very lengthy periods of incarceration. 

The bill would greatly complicate sentencing proceedings with 

the addition of many fact findings, all given that most defendants 

are indigent and unable to make the payments anyway and will 

not be sufficient to warrant the use of those resources. 

The bill will also result in an inefficient allocation of other scarce 

criminal justice resources, as prosecutors are diverted from their 

jobs of investigating and prosecuting crimes to acting as essentially 

civil collection agents. 

Finally, there are at least two aspects to the bill that I believe 

are clearly unconstitutional. With respect to mandatory restitution, 

it sounds good in theory, but in practice we know that roughly 85 

percent of defendants are indigent before they get prosecuted, and 

I would have to assume that a greater number of that are indigent 

after they have been prosecuted and served time in prison. The 

problem with ordering people to pay what everyone knows they 

can’t pay is then they simply have no incentive to try, because they 

know that they’ll never be able to pay all of their restitution, and 

so their incentive is to simply do the bare minimum. 

And that’s what I see every day. People are like, why should I 

go out and get a job that will pay me more money? All the probation officer is going to let me keep is enough to pay my bare expenses. My guess would be that mandatory restitution may result 

in less victim compensation and not more. I would certainly love 

to see that issue studied. 

It also inhibits an offender’s rehabilitation because, I agree that 

it’s good for defendants to be able to make restitution, what’s bad 

for defendants is to be saddled with an amount of restitution that 

everyone knows they can never pay. 

The two unconstitutional parts of this bill are the provision that 

provides for restitution without a conviction. This bill, for the first 

time in our Nation’s history, would authorize—would mandate 

courts to order restitution for conduct for which the defendant has 

been neither charged nor convicted, and perhaps even acquitted. 

And I was surprised to see that, because I knew that in 1984 this 

body, the House of Representatives, put in a report—it’s H.R. ReVerDate 0ct 09 2002 14:44 Aug 15, 2006 Jkt 000000 PO 00000 Frm 00027 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\061306\28198.000 HJUD2 PsN: 28198
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port number 98–1017—quote: ‘‘To order a defendant to make restitution to the victim for an offense for which the defendant was 

not convicted would be to deprive the defendant of property without due process of law.’’ I think it’s pretty clear-cut. It’s also just 

wrong and unfair. You shouldn’t be punished for something you 

haven’t been charged with, or convicted of. 

Lifetime supervision will be routine in virtually every case now 

because the bill provides that supervised release and probation 

must continue indefinitely until the restitution obligation that has 

been ordered without regard to their ability to pay has been satisfied. Given, as I said, that 85 percent of defendants are indigent, 

none of them will be able to ever satisfy their restitution fully. So 

this bill will essentially provide for a lifetime supervision of everyone. That will be an incredible expenditure of resources for very little benefit, and to the tremendous detriment of the defendant, 

again, no incentive to rehabilitate themselves. No matter what they 

do, no matter how they behave themselves, they will be under supervision for life, they’ll never really be free. 

It’s unconstitutional under Apprendi because right now there are 

statutory maximums to the terms of supervised release and probation. And this bill would allow a judicial fact-finding of restitution 

to then expose the defendant and in fact mandate that the defendant receive a term of supervised release or probation in excess of 

the otherwise existing statutory maximum. 

Another unwise aspect of the bill is to expand restitution to include consequential damages. As any civil practitioner knows, 

issues of consequential damages are limited only by the imagination. And so you’ll have issues of attorneys fees. Who likes litigating attorneys fees issues? 

So we’re going to now have attorneys fee litigation in every restitution hearing, we’re going to have how much did the defendant 

lose from not being at work, what’s his salary, how many days did 

he really need—the victim, rather—how many days did he really 

need to take off work for this? An incredible new array of fact-finding, all for nothing, because at the end of all that process nobody’s 

got any money to pay it. So it sounds great to measure all of these 

things and to go through all of that work, but there’s no money to 

pay it. 

I also would not approve of mandated joint and several liability, 

and I think we should tread very carefully about disclosing any 

part of presentence investigation reports, which is what this bill for 

the first time would permit. Thank you, Mr. Chairman. 

Mr. COBLE. Thank you, Mr. Felman. 

[The prepared statement of Mr. Felman follows:]

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PREPARED STATEMENT OF JAMES E. FELMAN


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Mr. COBLE. Thank you all, gentlemen. 

Gentlemen, we impose the 5-minute rule against us as well, so 

if you all can keep your questions rather tersely. 

Mr. Beloof, in your testimony you recommend that the act include a provision for the preservation of the defendant’s assets. 

Elaborate a little more in detail on that end, and tell us why you 

think this is significant. 

Mr. BELOOF. Well, of course, it takes many months, sometimes 

over a year, for criminal cases to come to resolution. And during 

that period of time there is the—the defendant has the opportunity 

to disperse their assets. Preserving their assets makes the probability of restitution collection much greater. 

I know that the Department of Justice has requested this provision in a letter to the Speaker of the House, and I strongly support 

their request for it. This can be—particular significant sums of assets can be obtained or frozen in white collar crime cases. 

Mr. COBLE. I thank you, sir. 

Mr. Levey, let me put a two-part question to you. 

Based upon your own experience and your interaction with other 

crime victims, describe the financial impact of crime, particularly 

the victims of violent crime, A. And B, what do you say when one 

would say, well, listen, the offender has already paid his debt to 

society; don’t you think an active prison sentence is sufficient? Why 

lean on him for further restitution? 

Mr. LEVEY. Mr. Chairman, Members of the Committee, the financial impact of crime, especially of violent crime, in my experience 

is obvious, it’s devastating, it’s not—you know, crime is not a 1-

hour TV show or book that we read. The ripple effect and the financial impact is endless. And it’s not only the obvious economic 

loss that the victim suffers, but it’s the things also that aren’t covered under restitution as well. So I would say, while it’s a piece of 

the puzzle, restitution is very important to crime victims. 

And, you know, it’s—I think it goes toward the accountability. 

And whether they have the means to pay it or not I think is somewhat moot, because the victim didn’t ask to be in this position, they 

may not have had the money to lose, and it was taken from them 

in one way or another. 

And on the other piece, I’m sorry, it was regarding the offender——

Mr. COBLE. Yeah. What do you say—after all, the defendant has 

already paid his debt to society, he’s served an active prison sentence, get off his back; why do you want to let him—I’m just paraphrasing now. 

Mr. LEVEY. Right. Well, I say to that, until they pay the economic loss—the prison sentence or the probation term is just one 

facet of their sentence—they need to complete their restitution as 

well. It’s not just hollow words on paper that a judge orders. Victims should be allowed to recoup the economic loss. And so you 

haven’t paid your debt to society if you’ve just done your prison 

term. 

Mr. COBLE. Mr. Felman, do your concerns regarding mandatory 

restitution remain intact, despite the court’s authority, under the 

current law and the bill, to establish a payment schedule or order 

41

some sort of nominal periodic payments? Does that give you any 

comfort? 

Mr. FELMAN. Not as much as I’d like. Obviously you can establish a payment schedule and you can order nominal payments, but 

the end result is the same. The restitution obligation will not be 

satisfied because it does not bear any relationship to the defendant’s ability to satisfy it. What is the point of ordering a defendant 

to pay an amount of money everyone knows they cannot pay? And 

of course there is always the argument, well, what if he wins the 

Lotto? And of course I’m all in favor of the current law or the law 

under the bill where, if the defendant’s economic circumstances 

change, they must advise the court of that and the court can then 

adjust the restitution accordingly. I’m just trying to talk about a 

policy that makes sense here. Let’s give people a target they can 

hit. 

Mr. COBLE. Professor Beloof, how does extending—strike that—

no, I’ll proceed with that. How does extending probation or supervised release improve the process of collection of restitution? 

Mr. BELOOF. Well, it improves the process of collecting restitution because it allows the courts to participate in the collection—

or the criminal courts to participate in the collection of restitution. 

The alternative to that is for victims to pursue the judgment in the 

courts and puts the burden on them of collection. So what it does 

is it makes more efficient for the victim the collection of restitution. 

And I’d like to add one more thing. I think what we’re discussing 

here or what the fundamental values we’re concerned about are, 

and I think the fundamental values we’re concerned with here are 

the values of standing by the crime victim and of maximizing the 

opportunity for restitution from them. They are the people whom 

an intentional crime was committed against. 

Congress has—well, I’ll stop there. 

Mr. COBLE. Well, my red light appears. 

I’m pleased to recognize the distinguished gentleman from Virginia, Mr. Scott. 

Mr. SCOTT. Thank you, Mr. Chairman. And Professor Beloof, I’d 

like to follow up on that. 

First of all, you mention the fact that under present law you 

can’t jail someone for nonpayment of something they can’t pay; 

does this bill change that law? 

Mr. BELOOF. No, it doesn’t change the law of the Supreme Court, 

sir. 

Mr. SCOTT. Okay. You also mention maximizing restitution. 

What is the likelihood that you’d be able to get any more money 

out of people who cannot meet the present standards of restitution, 

particularly in light of the fact that almost 90 percent of restitution 

is not collected now? 

Mr. BELOOF. Well, it would increase the time period in which offenders would make minimum restitution payments, so the answer 

would be it would improve it. 

Mr. SCOTT. What is the present period under which you have to 

make restitution payments? Does the bill change the period in 

which you can make restitution—you have to make restitution? 

42

Mr. BELOOF. It changes the period in which courts supervise the 

payment of restitution, yes, criminal courts supervise the payment 

of restitution; it extends that to the life of the offender. 

Mr. SCOTT. And what is the present law? 

Mr. BELOOF. The present law is until supervision ends. The victim has a judgment that they can continue to enforce after that supervision is ended. 

Mr. SCOTT. Mr. Felman, you mentioned the Apprendi case, and 

I assume the Blakely case would also be implicated. Who makes 

the finding of restitution? 

Mr. FELMAN. The judge. 

Mr. SCOTT. And in the bill, it’s based on preponderance of the 

evidence. What is the present law on setting restitution? 

Mr. FELMAN. It is also the case now that the judge makes the 

finding, but it does not violate Apprendi now, because the way the 

courts have construed it, there isn’t any maximum amount of restitution. So therefore, whatever amount of restitution the judge 

sets does not change the maximum punishment that the defendant 

knows he is entitled—he could get in the absence of that judicial 

finding. 

The reason this bill would violate the Constitution is because 

precisely it extends the period of supervised release and probation 

beyond the otherwise existing statutory maximum penalty. So it 

will increase defendant’s punishments above the otherwise applicable statutory maximum based solely on judicial fact-finding. 

Mr. SCOTT. And is that the same rationale for the problem you 

have with criminal conduct in the same episode that you’re finding—the judge is finding guilt on preponderance of the evidence 

that the jury didn’t find? 

Mr. FELMAN. It’s similar, but also worse. It just simply runs into 

the core of fifth amendment due process. The other concern is the 

sixth amendment one in terms of your right to a jury trial. Now 

we’re implicating not just the sixth amendment, but also the fifth 

amendment. You’re talking about punishing someone for something 

they’ve not been charged with or convicted of. And I think this 

body has recognized—and I don’t think it will take courts long to 

recognize—that that violates the Constitution. 

Mr. SCOTT. What’s wrong with publication of the presentence report? 

Mr. FELMAN. Well, I think that we want to tread very carefully 

there. Right now PSRs are the most sacred document in our system. In many jurisdictions the defendant himself is not allowed to 

have a copy of the PSR. Counsel may review it with their client, 

but counsel are typically required not to share the PSR even among 

co-counsel; they’re often required to return it at the conclusion of 

the case. The reason is that we want to give every protection possible to the contents of that document so that the judge can get the 

maximum amount of information possible. And anytime you’re disclosing to third parties and outside people the information that’s in 

that report, the quality of the information and the ability to gather 

the information will suffer. Right now, no one is entitled to see a 

PSR other than the parties. And this bill would for the first time 

authorize the release of portions of the PSR—and it’s somewhat 

43

vague as to which portions—to third parties, who then presumably 

could publish them to the world. 

Mr. SCOTT. The bill provides for pretrial freezing of assets. What 

would this to do an ongoing business, the right to retain counsel, 

and how much could you freeze? 

Mr. FELMAN. I don’t know the answer to any of those questions. 

I think it would all have to be litigated and sorted out. I mean, 

there’s already a right of pretrial restraint of proceeds of crime, 

and there are exceptions to that that are limited for attorneys fees. 

There sometimes is a bit of a battle, frankly, between the Government and the victims. I mean, the Government forfeits—if you 

want to know where the money could come from to pay all this restitution, I routinely see the Government come in and forfeit all the 

defendant’s assets, and they keep it and the victims get nothing. 

I think a fruitful avenue of examination would be where is all the 

forfeiture money going? 

Mr. SCOTT. Mr. Beloof, can you address that question, the pretrial freezing of assets; what would it do to somebody’s ongoing 

business? Whether it implicates your ability to retain counsel, and 

how much could you freeze? 

Mr. BELOOF. Yeah, I think that the answer is it could impinge 

on the ability to do ongoing business, depending upon whether the 

business entity itself was indicted. Typically, individuals are indicted, so it’s more likely that it would infringe on the individual 

defendant’s ability to disperse their assets. But certainly where a 

business itself was indicted, it might affect their ability to conduct 

business. 

Mr. SCOTT. Mr. Chairman, if I could, if you’re self-employed——

Mr. BELOOF. That would affect your ability to do business. 

Mr. SCOTT. Pretrial. 

Mr. BELOOF. Pretrial after you were indicted. 

Mr. SCOTT. Thank you. 

Mr. COBLE. I thank the gentleman. 

We’ve been joined by the distinguished lady from Texas, Ms. 

Sheila Jackson. Very good to have you with us, Sheila. 

The distinguished gentleman from Ohio. 

Mr. CHABOT. Thank you, Mr. Chairman. 

As one whose name gets butchered around this place quite frequently, Professor, before I do it I’ve heard several pronunciations. 

Could you say your name, please, for me? 

Mr. BELOOF. It’s Beloof, sir——

Mr. COBLE. My apologies to you, Professor. 

Mr. BELOOF. No, you were doing it well, I thought. 

Mr. COBLE. Thank you for exposing me, Mr. Chabot. 

Mr. CHABOT. That’s all right. 

Professor—it’s probably easier to just say Professor anyway—the 

gentleman, Mr. Felman here, has alleged that this particular piece 

of legislation, in his view it’s unconstitutional in several aspects. 

Could you respond to that? 

Mr. BELOOF. Yeah. Well, I think, first of all, restitution without 

a conviction happens all the time. It’s done in plea bargain settings; defendants agree to pay restitution on unindicted crimes. 

And my guess is that this legislation allows, simply facilitates the 

44

ability of courts to order that restitution. It’s stipulated to all the 

time. 

In the narrow question in those cases where it goes to trial, I expect there might be some issue as to whether the court could order 

restitution on a crime for which there wasn’t a conviction. That 

would be the vast minority of crimes, and I would expect that this 

provision would be interpreted to avoid that small potential constitutional problem. 

In terms of lifetime restitution obligation supervision, I see no 

constitutional problem with that. You’ll be passing a statute that 

postdates the probationary terms and other laws, and courts typically interpret statutes that have the potential to be in conflict not 

to have constitutional problems. Since this will be the most recent 

statute passed, I suspect that this statute will prevail over the 

other statute, and a constitutional confrontation will not occur. 

Mr. CHABOT. Thank you. Professor, and Mr. Levey, if I could ask 

both of you this, Mr. Felman also made the statement that he felt 

that this legislation—if you have somebody in prison, that there 

may be a disincentive for them to attempt to pay anything or to 

better themselves because they’re going to have this hanging over 

them their whole lives and they won’t be able to ever pay it off, 

so why bother? And that’s when I saw both of you writing sort of 

frantically when that statement was made. 

Mr. Levey, how about if we——

Mr. LEVEY. Sure. Well, my response, Mr. Chabot, and Chairman, 

Members of the Committee, would be that we don’t order restitution just because we think it may or may not get paid; we pay it 

for the economic harm that the victim suffered. We know that the 

victim lost that money for whatever reason, and to think that an 

inmate would not pay because it’s too high of an amount or they 

don’t feel that they’re ever going to be able to pay it off, I think 

it’s about accountability and responsibility that the inmates should 

take for their crimes. And so I think that that’s a weak argument 

that there’s not a likelihood that they’ll pay it. I mean, what if they 

do pay it? 

Mr. CHABOT. Professor? 

Mr. BELOOF. Well, it’s interesting. You know, if you look at other 

policies that Congress has passed, I mean, it’s now virtually impossible for a student who has taken out a loan to declare bankruptcy. 

It’s curious to me that we would want to allow an offender to have 

some equivalent bankruptcy kind of argument, that is, not be obligated to repay their restitution when they have committed an intentional criminal act. 

So I agree with Mr. Levey, this is about accountability, it’s about 

prioritizing the interest of victims over the convenience of Government and over the accommodations of the criminal defendant. It’s 

really a question of fundamental values, where you come down on 

it. 

Mr. CHABOT. It’s also my understanding that about 95 percent of 

the people that are in prison right now will someday be out. Many 

of those will be gainfully employed at some point. And it’s also my 

understanding that the amounts that are being paid are about— sometimes well under $100 a month; so they’re not taking all the 

money, they’re taking a portion of it. 

45

Let me conclude. Mr. Levey, a few months ago I happened to 

have an opportunity to visit the headquarters of Parents of Murdered Children, and I was told that this really amazing group handles as many as a thousand calls a week from family members that 

are affected over the loss of a loved one—not that there’s a thousand murders, but there are ongoing cases, et cetera. 

From your personal experience, in addition to your role as President of Parents of Murdered Children, could you explain for the 

Subcommittee both the tangible and intangible loss that crime victims experience, and how restitution is important to the healing 

process of victims and their families? 

Mr. LEVEY. Sure. You know, the intangible things are you don’t 

have the comfort of your loved one anymore, you don’t have the 

things that were in your life, and yet you must go on. And so the 

emotional strain that crime puts on victims is oftentimes insurmountable. The prevalence of drug abuse and alcoholism amongst 

survivors, divorce, is huge. The intangibles are a sense of justice 

and the feeling that someone is going to be held accountable. I 

would say that’s intangible, you can’t put your hands on it, you 

can’t touch it or feel it, and yet you’re thrust into a system that 

is often not as swift, severe, and certain as we learned in our civics 

class. 

And some of the tangible things, the obvious things, are the person in violent crime, in murder, is no longer with you, the economic 

loss. And it’s important because whether they can pay it or not, it’s 

symbolic for many victims to know that whether they’re paying 10 

cents a week or whatever it is, that every time they pay that 

money, they’re thinking about their crime, hopefully, and thinking 

about their victim. 

And so it’s very important that victims hear that restitution is 

ordered, one, for the loss that they had. I mean, to me it would be 

unconscionable, almost like another crime if I lost $100,000 as a 

fraud victim, and yet because the court felt the likelihood of the defendant paying is not good, we’re going to only order 50,000 at a 

lower rate. It just doesn’t seem right. 

So I guess if I summed it up, you know—there’s almost too much 

to put your hands around, but I guess if I had to sum it up I would 

say that restitution is meaningful in the sense that, one, it pays 

for the economic loss; but two, it may be in many respects it’s symbolic that the offender, postconviction and postsentencing, is going 

to be thinking about their victim every time they pay restitution. 

Mr. CHABOT. Thank you very much. 

Mr. COBLE. The gentleman’s time is expired. The distinguished 

gentleman from Massachusetts, Mr. Delahunt. 

Mr. DELAHUNT. Yes, thank you, Mr. Chairman. 

Mr. Levey, you’re aware, of course, that this particular legislation in the vast majority of murder cases would not be applicable. 

Mr. LEVEY. Yes, I’m aware. You know, many murder cases, 

they’re at the State level——

Mr. DELAHUNT. Almost all of them are. You know, I mean, to implicate a murder, a charge of murder, into the Federal courts is 

very, very rare. 

Mr. LEVEY. Well, I work closely with our U.S. Attorney’s Office 

in the District of Arizona, and they handle quite a few homicides. 

46

We have a large Native American population, and obviously I know 

you’re aware that the Federal crimes that occur, such as Oklahoma 

City bombings and others, murder does happen at the Federal 

level—not to the degree that the State——

Mr. DELAHUNT. Let me suggest, maybe—I just think it’s important for clarity purposes that—and I’m just going to throw a number out and either one of the other witnesses can respond to it, but 

I daresay that 97, 98 percent of the homicides in this country are 

prosecuted at the State level, and that this particular proposal before us would not apply. 

Professor Beloof. 

Mr. BELOOF. Well, the short answer is that Federal legislation 

often establishes a model for the States. 

Mr. DELAHUNT. But that doesn’t answer my question, does it, 

Professor? 

Mr. BELOOF. The answer is, I think I have it before me, 2003, 

2004, there were 55 murders, Federal jurisdictions. 

Mr. DELAHUNT. And thousands, tragically, of murders in the 

State system. I just think it is important to recognize that point. 

Mr. BELOOF. Correct. 

Mr. DELAHUNT. Because we don’t want to confuse anyone that 

may be watching this particular hearing to think that murder victims would benefit in the overwhelming majority of cases. That just 

simply wouldn’t happen. 

I have a question for Mr. Felman. 

Taking that premise that 99 percent of murder cases, most 

crimes of violence, this legislation would probably prevail mostly in 

white collar crimes; would you agree with that? 

Mr. FELMAN. I think that’s correct; most economic crimes would 

be the crimes in which restitution would be ordered. 

Mr. DELAHUNT. Would you agree with me that the likelihood of 

white collar defendants having the capacity to return into society 

and earn a living that would allow them to meet restitution norms 

or standards would be a lot more likely than it would be at the 

State level? 

Mr. FELMAN. I think that’s correct. It depends on what you mean 

by restitution norms and standards. 

Mr. DELAHUNT. Well, whatever the court decided. 

Mr. FELMAN. Well, if the court had the discretion to take into account anything about the defendant or his capacity, then yes. 

Mr. DELAHUNT. I guess what I’m going to is the changed economic conditions I daresay are very rarely enforced. And again, I’m 

just reading the bill for the first time. But do you have a problem 

in terms of post-termination of probation, some remedy for a crime 

victim to return into—the Federal court in this case—and demonstrate to the probation officer, without going through a lengthy 

fact-finding, that the defendant who defrauded the victim of substantial savings is now in a position to fully compensate the victim? 

Mr. FELMAN. I think that is true under existing law. I don’t think 

it is related to the period of supervision. I think 3663 A(k) is the 

part about material change of circumstances, and it is not tied to 

the period of release. What I think victims could benefit from is the 

ability to reach a settlement agreement with the defendant. There 

47

are circumstances out there where a defendant is able to borrow 

money from somebody to pay off—— Mr. DELAHUNT. I understand that. What I am saying is there are 

far too many sophisticated criminal defendants that know how to 

gain the system that leave victims uncompensated, particularly in 

the area of economic or white collar crime so that, you know, a victim is disadvantaged permanently without really a genuine recourse, because you know Federal probation departments; they 

don’t take the time. And I am not saying they don’t have the resources to go out and make a determination that circumstances 

have changed. And I think that really is egregious. 

Mr. FELMAN. I think I agree with you. But I think it is already 

covered by current law, but settlement agreements are not permissible. There is no jurisdiction in the district courts to approve a settlement agreement under current law. 

Mr. DELAHUNT. If it is already covered by current law, that then 

goes to the issue—what you are telling me is that under current 

law—if I could have an additional 30 seconds. 

Mr. COBLE. Without objection. 

Mr. DELAHUNT. If, under current law, the enforcement of the restitution that is ordered by the court survives the termination of 

probation——

Mr. FELMAN. Well, it gets converted to a judgment, and then the 

Financial Litigation Unit at the U.S. Attorney’s Office is charged 

with the enforcement of that. Typically defendants will enter into 

a payment agreement on the side that continues the exact same 

payments they were making while they were on supervision. 

Mr. DELAHUNT. Are you aware of any study that has been done 

in terms of the enforcement post-probation? 

Mr. FELMAN. No. 

Mr. COBLE. The gentleman’s time has expired. 

The Gentlelady from Texas, Ms. Sheila Jackson Lee. 

Ms. JACKSON LEE. Thank you very much, Mr. Chairman. 

I always try to look for the silver lining in some of the work that 

we do in this Congress. And frankly, I believe that some aspects 

of this initiatives have value to the extent that, if you have done 

wrong and harm to victims and the victims’ families, that we 

should not be sympathetic to how much you can pay. 

But I want to try to be realistic as well. And I will offer into the 

record, just by reciting the fact that, pursuant to a 1996 study, victims are impacted in the instance of murder by $2.9 million, 

$87,000 for rape and sexual assault, $8,000 for robbery, $1,400 for 

burglary and $370 for larceny. So there is an impact. Mr. Levey, 

I want to acknowledge and offer sympathy, in your circumstances 

being someone who has lived through this. 

At the same time, we will note that 87 percent of Federal restitution is uncollected each year. And, frankly, I think that we should 

find a way to seek common ground where reality sinks in and we 

try to find solutions to that huge gap. In fact, I am looking for the 

number which I think is billions of dollars, and I will find that 

shortly. 

So I raise these questions, and I would like Mr. Felman to talk 

again about his thoughts about the fact that a part of the legislation in this bill points to defendants that are neither charged nor 

48

convicted. Would you offer your comments on that? Now remember, 

people listening are saying, well, you are dealing with criminals, so 

why worry about that? They were around the scene. Somebody 

thinks they might have been involved. What is the constitutional 

issue or any legal issue that would cause us to pause because of 

that provision in the bill? And might I just put on the record that 

the outstanding criminal debt since 2001 is probably more. It has 

ballooned to $13 billion. 

[The prepared statement of Ms. Jackson Lee follows in the Appendix] 

Mr. FELMAN. Well, I agree with Professor Beloof that in a circumstance in which it is a part of the plea agreement, that restitution will be made for conduct not charged and for which the defendant was not convicted. That will not violate the Constitution because that is being done with the defendant’s consent. 

Ms. JACKSON LEE. That is accepted? 

Mr. FELMAN. No question about that. That is in the distinct minority of cases. Typically speaking, nobody knows what the restitution is until after the defendant has pled and you are getting to the 

sentencing proceeding. That is what is lost, I think, sometimes. 

Prosecutors don’t have the time to have their agents go out and figure out what all of the different victims’ losses are before a sentencing hearing. Their job is to convict this defendant. The restitution will get figured out later. 

It is, I think, the rare exception where everyone knows what the 

restitution amounts are and they are put in a plea agreement. And 

in every case in which—I don’t understand the fascination with 

punishing people for things they have not been charged with and 

have not been convicted of. And it is not like there is any limit that 

is available here. We have got conspiracy law. You charge somebody with a conspiracy. You convict them of a conspiracy or get 

them to plead guilty to a conspiracy. They are liable for all losses 

caused by any member of that conspiracy whose act was reasonably 

foreseeable to them and was undertaken in the course of the common scheme. It is a huge web. And if you can’t fit your loss into 

that web, then I think we need to think again about whether that 

is something that we need to be ordering. 

Ms. JACKSON LEE. In essence, what we are having is a fishnet 

out, throwing the fishnet and grabbing anybody who might have 

been walking by the crime scene. If we wanted to be serious about 

responding to, I think, the eloquence and the realness of Mr. 

Levey’s situation as he speaks on behalf of victims, I want them 

to, one, see the criminal justice system work on their behalf fairly, 

and I think restitution is valid. 

A provision like this carves away a reasonable bipartisan perspective which says let’s find a way to make sure that $13 billion 

doesn’t sit out there, and let’s not have 87 percent of the restitution 

not being paid. Getting people who are not indicted seems to me, 

Federal or State level, bears on people’s constitutional rights. 

I would like to ask Professor Beloof whether or not this whole 

idea of continuing to hold people in supervised release and lack of 

probation until they pay. Particularly if we note—I would like to 

ask an additional minute. 

Mr. COBLE. Without objection. 

49

Ms. JACKSON LEE. Particularly, as we have noted that most of 

these people are indigent, have Federal defenders, et cetera, can we 

find a better way? And I would like Mr. Felman’s thoughts on that. 

In addition to restitution, then, what is happening is, even though 

a lot of cities were looking to the forfeiture dollars, we don’t get 

them. I would still like to know where those forfeiture dollars go. 

But if you forfeit property of a defendant, why can’t some of those 

resources be included as restitution to the victim? 

The victim should be made whole. I don’t quarrel with that issue. 

No one can stand and choose a victim’s—whether they survive the 

criminal act or whether or not their families have to live with their 

death. But this kind of feudal hostage indentureship certainly, I 

think, has constitutional problems. Professor——

Mr. BELOOF. I have a——

Ms. JACKSON LEE. I would like you to be able to respond first. 

Mr. BELOOF. I would agree with you, Representative Lee, that 

the payments to victims should be prioritized over fines or recovery 

for Government. I do not agree that the extension of probation to 

collect restitution is futile. Your comment that——

Ms. JACKSON LEE. Feudal system. 

Mr. BELOOF. Or feudal, not futile. In a feudal system, frankly—

well, I won’t tell you what would have happened. 

Ms. JACKSON LEE. That is all right. We are close to it. 

Mr. BELOOF. But you have talked about reality, and I think it 

would be good for the Committee—I support this bill strongly—to 

step back and look at what is being done to collect. 

Mr. COBLE. Professor, I don’t want to put you all in a straight 

jacket. We are going to have a vote at about 11:00, so if you could 

be brief. I want to have a second round as well. 

But go ahead, Professor. 

Mr. BELOOF. I think an assessment by this Committee and staff 

about things like forfeiture and what resources are available to the 

Federal Government to assure collection and how that is done is 

a laudable notion. 

Ms. JACKSON LEE. Quickly, Mr. Felman, could you respond on 

that payment system? 

Mr. FELMAN. We need to look at where the forfeiture dollars are 

going because, in my experience, I see a lot more money going into 

forfeiture, and I don’t know where that money goes either. 

Ms. JACKSON LEE. What about not releasing individuals because 

they have not paid? 

Mr. FELMAN. If it was tied to the amount they could actually pay 

and if the judge was saying, I think, that in your lifetime, if you 

work this hard, you can pay this; if we let the judge actually make 

some rational assessment of what somebody could actually pay, I 

might be more inclined to look at that. The problem is that by definition the person’s ability to pay is simply not relevant. So we 

know that the reason why the amount of uncollected restitution exploded after 1996 is that we started ordering amounts that everyone knew couldn’t be paid. 

Ms. JACKSON LEE. So that is a good amendment for this bill. 

Mr. FELMAN. If we got rid of the mandatory nature of it, that 

would be a huge step in my opinion. At least, let’s study it. I would 

50

love to see a study on whether making—ordering people to pay 

what they can’t pay results in paying any more. 

Ms. JACKSON LEE. I thank you. I thank the Chairman. 

Mr. COBLE. Thank the gentlelady. 

We are going to go through a second round here, folks. This is 

an important issue. And Mr. Levey, I want to extend what the 

gentlelady of Texas said. We extend our condolences to you because 

you are right in the middle of it more so than the rest of us. You 

have direct exposure. 

Professor Beloof, Mr. Felman expressed some concern about disclosing portions of the PSR as it relates to assets. As we all know, 

the PSR is now confined to the parties that are the defendant and 

the Government. What do say you to that? 

Mr. BELOOF. Well, I say, first of all, that that is not correct that 

the PSR can be given to anyone or any portion of the PSR can be 

given to anyone at the judge’s discretion. I would note that Congress has recently overwhelmingly passed the Crime Victims 

Rights Act which provides for full and complete restitution. That 

was in October of 2004. It was signed by the President, the most 

recent affirmation of full and complete restitution. And in order for 

victims to adequately speak at sentencing and seek restitution, 

courts should now and can now in their discretion be allowing portions of the PSR to be released to victims and their attorneys. 

Mr. COBLE. I thank you, sir. 

Mr. Felman, I don’t think this was put to either of you witnesses. 

How does a court’s extension of probation or supervised release violate Blakely? 

Mr. FELMAN. Because, under current law, there is a statutory 

maximum term of probation that is permitted to be imposed, and 

it is 5 years. In the absence of any—that is the statutory limit on 

the term of probation. It is 5 years. For supervised release, depending on the classification of the felony, it is either 2 years, 3 years, 

4 years or 5 years. What this would do is say that, based upon a 

judge’s finding of fact with regard to an amount of restitution, that 

if that restitution exceeds the defendant’s ability to pay it during 

the period of the statutory—the otherwise authorized statutory period of probation—that additional punishment will therefore be visited upon the defendant; that is a period of supervised release or 

probation in excess of the statutory maximum penalty that would 

apply in the absence of that judicial fact-finding solely based upon 

the judge’s fact finding. And my reading, I mean, you know, you 

never know what the Supreme Court is going to do, but my reading 

of Apprendi, Blakely and Booker would be that that would squarely 

present a very significant sixth amendment issue. 

Mr. COBLE. I don’t want to simplify this, but as far as restitution 

is concerned, I don’t want criminals to be able to conclude, well, I 

am going to go knock off a bank or I am going to go kill someone 

and not have to answer to it. That is the part that I want to keep 

in the forefront. 

Thank you, gentlemen. 

The gentleman from Virginia. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Professor Beloof, can a defendant plead—file bankruptcy to discharge debts incurred in an institutional crime? 

51

Mr. BELOOF. Not anymore, sir. 

Mr. SCOTT. Were they ever able to do it? 

Mr. BELOOF. Yes, they were. 

Mr. SCOTT. When? 

Mr. BELOOF. Well, I guess this issue first came across my desk 

about 14 years ago in a case in which I represented a State court 

judge, and since then, Congress has moved to eliminate bankruptcy 

for intentional criminal conduct. 

Mr. SCOTT. Okay. Following up on the question of extended probation, what would be the enforcement mechanism after the otherwise statutory maximum time for supervision? Would the defendant be subject to jail for nonpayment even if he could pay after that 

maximum period of time? 

Mr. BELOOF. If he could pay? 

Mr. SCOTT. If he could pay. 

Mr. BELOOF. Under this bill? 

Mr. SCOTT. Right. 

Mr. BELOOF. I believe so. 

Mr. SCOTT. He could be jailed. 

Mr. BELOOF. I believe so, if he could pay. 

Mr. SCOTT. If he had the ability to pay and didn’t pay after the 

statutory maximum period of supervision otherwise available in 

law. 

Mr. BELOOF. I believe so, sir. 

Mr. SCOTT. Mr. Felman, is that your view, too? 

Mr. FELMAN. No doubt about it. 

Mr. SCOTT. Does anyone have a study to show that this bill 

would actually increase or decrease the amount of money actually 

paid? 

Mr. BELOOF. There is, to my knowledge, there is no study. 

Mr. SCOTT. Does anyone have access to a study that would show 

that this would actually increase or decrease recidivism? 

Mr. BELOOF. This particular bill, I don’t believe there has been 

a study on this particular bill, sir. 

Mr. SCOTT. Thank you. 

Mr. COBLE. I thank the gentleman. 

The distinguished gentleman from Ohio. 

Mr. CHABOT. Thank you, Mr. Chairman. 

I would just first note that we pass bills all the time around this 

place where we don’t have a study that indicates exactly what is 

likely to happen, and sometimes, common sense tells us that if you 

do one thing, there will be an——

Mr. SCOTT. Would the gentleman yield? 

Mr. CHABOT. Yes, I would be happy to yield. 

Mr. SCOTT. We have actually passed bills where the studies 

showed our actions would actually increase crime. 

Mr. CHABOT. In reclaiming my time, we have passed many bills 

around here, and we have had studies. We have also oftentimes 

had studies where this study says you are going to have this result; 

or you had this result, and you have another study that is completely opposite of that. And we have the ability around here to 

pick some studies over others or disregard all of them, but I don’t 

think the fact that there hasn’t been an independent expensive taxVerDate 0ct 09 2002 14:44 Aug 15, 2006 Jkt 000000 PO 00000 Frm 00055 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\061306\28198.000 HJUD2 PsN: 28198
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payer-paid study that is going to say what is going to happen as 

a result of this really amounts to anything. 

And I might also add that I have—we were talking before with 

the Ranking Member, that we actually agree on a number of things 

besides the Federal prison industry, the Voting Rights Act, the 

Black farmers issues and others as well. This is one that we happen to disagree on. 

My friend, Mr. Delahunt, before, I think, made some point about 

indicating rightly that most crimes that are committed in the 

United States are dealt with at the State level or at the local level 

because they are not Federal crimes, although there are Federal 

crimes that do have an impact on the lives of the American people. 

Look at the Oklahoma City bombing, as Mr. Levey mentioned, for 

example. But there are about 55 murders every year where there 

is Federal jurisdiction, and it is my understanding, according to a 

study, that in about 38 percent of those murders, there was no fine, 

no restitution or anything else. And those are the types of cases 

that this would plug up the hole. 

I would also mention, there are an awful lot of fraud cases which 

are Federal crimes. According to a study, apparently there were 

5,364 fraud cases at the Federal level and in only about a third of 

those, 30 percent, were there any fines or restitution in those cases. 

But as I believe Professor Beloof also mentioned, just because the 

crimes are committed at the State level, if we pass a law here in 

Washington, oftentimes what we do here doesn’t get attention and 

State officials look and they say, well they did this at the Federal 

level, and why don’t we do this in this State or this State? So 

what—we do have impact sometimes for the good and sometimes 

for the bad. 

So getting back to that whole line of thought, Professor, if you 

could just comment on this idea about the number of crimes at the 

Federal level. Most crimes are actually at the State or local level, 

and what would be the impact something like this could have over 

and above just those people that would be directly affected in the 

Federal court system? 

Mr. BELOOF. I know that the most recent significant crime victim 

law Congress has passed is grabbing the attention of State legislators and State Governors. And I have been consulted by several 

Governors’ offices and legislative officers who are seeking to enact 

more meaningful victims’ rights laws as a result of the overwhelming support for that statute in both the Senate and the 

House. So Federal approaches to criminal justice are—can be very 

significant in the States. 

Mr. CHABOT. Thank you. 

And I have just been handed a study here also—Cynthia 

Kempinen, it is called, ‘‘Payment of Restitution and Recidivism’’—

that indicates, at least this study says that paying restitution does 

decrease recidivism. 

And going back to you, Professor, could you, again, just remind 

us, because sometimes we get sort of far field, what—why we have 

restitution and just what it is, what holes we are trying to plug 

here. What have been the problems, and what are we trying to 

solve by this particular piece of legislation? 

53

Mr. BELOOF. Part of the problem has been the collection problem. 

And much of what is solved in this bill is making more efficient collection. The suggestion that we pre-freeze assets, facilitating probation officers, collection of information for the courts, providing the 

prosecutors’ office with more tools to facilitate the collection, removing some of that information, collection out of the courtroom 

and into the administrative and executive branches. These things 

are all going to facilitate the collection of restitution. 

In addition, the extension of time simply lengthens the time, the 

probability, I believe, increases the probability of the time during 

which offenders are going to continue to pay that restitution. 

Mr. CHABOT. Thank you. 

Mr. COBLE. I thank the gentleman. 

Ms. Jackson Lee, do you have another round? 

Ms. JACKSON LEE. Thank you. 

Let me ask Mr. Levey just your vision, your passion and again 

my acknowledged sympathy for your loss. What would you like in 

terms of getting a bill passed? What would be your instruction? 

What can we do? You said—you heard what I said, $87 billion—

$13 billion, I am sorry, not paid and 87 percent of the restitution 

not paid. What would strike the appropriate response for you? 

Mr. LEVEY. Well, I know the answer isn’t to not do anything to 

answer the question backwards, but I would like to see that number lowered. Obviously, I would like to see a more effective enforcement in collection of restitution and some consequence like still 

being under supervision if you don’t pay it. It is amazing, in Arizona, we can extend restitution at the State level or we can extend 

probation 3 years on the end of their term, and you know, a lot of 

those people do find a way to come up with the money when they 

start to get to the point where they are going to be extended. Not 

all of them, but I don’t think the burden should be less on the offender. I think victims are owed the restitution literally and always 

by the system, and so I don’t have a remedy, a magic pill here. I 

think we are moving along the right direction with this type of legislation and just ramping it up and making offenders realize that 

this is an important part of their sentence, and it isn’t going to be 

discharged because you can’t pay it or because it is more than you 

can afford right now. They shouldn’t have done the crime. 

Ms. JACKSON LEE. I think you have, in your words, struck a very 

fair balance. You want something done. This legislation, of course, 

opens the door for discussion. But we can find a way to answer, I 

think, for your concerns as we develop something that will work 

and pass constitutional muster. 

Just quickly to Professor Beloof, and I would like Mr. Felman to 

respond after, and this will be my last question. Isn’t it possible or 

isn’t there the potential that this expanded mandatory restitution 

may in fact include what is perceived to be a consequential damage? Do you see that happening? 

Mr. BELOOF. Yes, the question—I mean, the question is whether, 

I guess, in the first instance, whether the bill allows consequential 

damages. If it does, and I am not confident that it does, it would 

be only implicitly. If it did, I am sure it would be constitutional. 

I don’t think there is a constitutional problem with consequential 

damages. 

54

Ms. JACKSON LEE. Mr. Felman? 

Mr. FELMAN. I agree there is not necessarily a constitutional prohibition on including consequential damages, but I think this bill 

clearly does that. It requires——

Ms. JACKSON LEE. Is that the purpose of the criminal law? 

Mr. FELMAN. Well, not in my view. I mean, it would be one thing 

if you were going to tailor it to what they could actually pay, then 

we could have an intelligent discussion about whether it is worth 

having to go through all of the trouble to litigate consequential 

damages. Get that. But we know nobody is going to be able to pay 

it, but it will be mandated litigated anyway. 

Ms. JACKSON LEE. Let me—I think my concluding comment is 

that, why don’t we do something that works here? And why don’t 

we do something that alleviates the pain of Mr. Levey and many 

other families in order to do that? Why don’t we address some of 

the fractures in this bill that I think keep it from seriously going 

forward? I hope to be able to do that. 

Mr. FELMAN. One improvement that I would think that victims 

might be interested in having is, as I mentioned earlier, is the ability to actually settle. In other words, say a victim is owed a 

$100,000, and the defendant only has $10,000, but his mom will 

loan him $90,000 in order to satisfy his restitution obligation. Now, 

no victim has to agree to anything like that. Well, that would be 

a full settlement. Suppose they can compromise it. No victim would 

have to agree to any settlement. But right now, the law does not 

vest a district court with the jurisdiction to permit the settlement. 

And if I am the victim, I want to have the opportunity to at least 

settle if I want to. And I think that would be an improvement for 

the bill, and I would think most victims would at least want to 

have that option even if they don’t choose to exercise it. 

Ms. JACKSON LEE. I want a solution, as I close, for the pain of 

victims. I want somebody that is going to move forward, and what 

I have heard from the three of you is, we can address the plight 

of victims that should be addressed, but we can also be realistic 

and move forward so that victims are truly compensated. That is 

what I would like to say. 

Mr. COBLE. I thank the gentlelady. 

Mr. SCOTT. I would ask the gentleman from Ohio to provide the 

details of the study that he cited, and I would appreciate that. 

Mr. CHABOT. Be happy to. 

Mr. SCOTT. There are other studies on mandatory minimums and 

find what juveniles and adults, with a clear consensus of mandatory minimums as it wastes the taxpayers’ money, in trying more 

juveniles as adults, the clear consensus of those studies is that it 

increases crime. Unfortunately, both poll well, and as the gentleman from Ohio has suggested, they tend to pass because they 

poll well, not because they will actually do anything about crime. 

I yield back. 

Mr. COBLE. Well, this has been a good hearing, gentlemen. I 

thank you all for being here. I very much appreciate your contribution. In order to help ensure a full record and adequate consideration of this important issue, the record will be left open for additional submissions for 7 days, also written questions that a MemVerDate 0ct 09 2002 14:44 Aug 15, 2006 Jkt 000000 PO 00000 Frm 00058 Fmt 6633 Sfmt 6601 G:\WORK\CRIME\061306\28198.000 HJUD2 PsN: 28198
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ber wants to submit should be submitted within that same 7-day 

time frame. 

This concludes the legislative hearing on the Criminal Restitution Act of 2006. Thank you for your cooperation and your attendance as well as those in the hearing room. 

And the Subcommittee stands adjourned. 

[Whereupon, at 10:50 a.m., the Subcommittee was adjourned.] 

(57)

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

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PREPARED STATEMENT OF THE HONORABLE ROBERT C. SCOTT, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF VIRGINIA, AND RANKING MEMBER, SUBCOMMITTEE

ON CRIME, TERRORISM, AND HOMELAND SECURITY


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PREPARED STATEMENT OF THE HONORABLE SHELIA JACKSON LEE, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF TEXAS


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PREPARED STATEMENT OF THE HONORABLE STEVE CHABOT, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF OHIO


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Æ


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