Federal Courts

Differences Exist in

Ordering Fines and

Restitution

Statement of Richard M. Stana, Associate Director

Administration of Justice Issues

General Government Division

United States General Accounting Office

GAO Testimony

Before the Subcommittee on Crime, Committee on the

Judiciary, House of Representatives

For Release on Delivery

Expected at

9:30 a.m. EDT

Thursday

May 6, 1999

GAO/T-GGD-99-95

Statement

Federal Courts: Differences Exist in Ordering

Fines and Restitution

Page 1 GAO/T-GGD-99-95

Mr. Chairman and Members of the Subcommittee:

I am pleased to be here today to discuss the results of our review of the

imposition of fines and restitution in federal criminal cases. My statement

will outline the results presented in our recently completed report, Federal

Courts: Differences Exist in Ordering Fines and Restitution (GAO/GGD-99-

70, May 6, 1999).

For that report, you asked us to (1) identify the percentages of those

offenders who were ordered to pay fines and restitution in fiscal year 1997

and those who were not, (2) identify differences across judicial circuits

and districts in the percentages of those offenders who were ordered to

pay fines or restitution and those who were not, and (3) provide officials’

opinions about possible reasons for these differences. We also

documented changes in the rate at which offenders were ordered to pay

fines and restitution before and after the Mandatory Victims Restitution

Act (MVRA),1

 which was enacted April 24, 1996.

To answer your questions, we used 1997 data from the United States

Sentencing Commission (USSC). USSC maintains a computerized data

collection system, which forms the basis of its clearinghouse of federal

sentencing information. We performed a statistical analysis of this data

base for all 12 judicial circuits and 94 districts for offenders ordered to pay

fines and restitution. We performed multivariate statistical analyses to

determine which factors affected the likelihood of offenders being ordered

to pay fines or restitution. We did not determine whether fines or

restitution ordered were actually paid. We discussed our results with

officials of the Department of Justice (DOJ), the Administrative Offices of

the U.S. Courts (AOUSC), USSC, and with chief judges, chief probation

officers, and representatives of U.S. Attorneys offices in seven judicial

districts. A complete description of our scope and methodology can be

found in our report.

Individuals convicted of a federal crime can be ordered by the court to pay

a fine or restitution at sentencing. Criminal fines, which are punitive, are to

be paid in most cases to DOJ’s Crime Victims Fund. USSC Guidelines

provide guidance on the minimum and maximum fine amounts to be

imposed by the courts, based on the offense. In establishing the USSC,

Congress sought, as one objective, uniformity in sentencing by narrowing

the wide disparity in sentences imposed for similar criminal offenses

committed by similar criminal offenders. Fines may be waived if the

 

1

 Title II of Public Law 104-132.

Background
Statement

Federal Courts: Differences Exist in Ordering Fines and Restitution

Page 2 GAO/T-GGD-99-95

offender establishes that he or she is unable to pay and is not likely to

become able to pay a fine. MVRA reformed restitution law and now

requires the court to order full restitution in certain cases to each victim in

the full amount of each victim’s losses, without regard to the offender’s

economic situation. Previously, as with fines, the court could waive

restitution, in most cases, based on offenders’ inability to pay.

While many factors influenced whether an offender was ordered to pay a

fine or restitution, the judicial circuit or district where the offender was

sentenced was a major factor during fiscal year 1997. This variation

among judicial circuits and districts occurred overall for all federal

offenders sentenced under USSC Guidelines during that year; and,

although occurring less, this variation persisted when we performed

multivariate statistical analysis for federal offenders sentenced for four

types of offenses.

Most of the approximately 48,000 federal offenders sentenced under USSC

Guidelines in fiscal year 1997 were not ordered by the courts to pay a fine

or restitution. About 19 percent were only fined by the courts, and about

20 percent were only ordered to pay restitution. Of the offenders

sentenced, about 2 percent were ordered to pay both fines and restitution.

The total amount of fines and restitution ordered was over $1.6 billion

dollars.

The percentage of offenders ordered to pay fines or restitution varied

greatly across the 12 federal judicial circuits and 94 federal judicial

districts. Across districts, for example, the percentage of offenders

ordered to pay fines ranged from 1 percent to 84 percent, and the

percentage of offenders ordered to pay restitution ranged from 3 percent

to 49 percent. The likelihood of an offender’s being ordered to pay fines or

restitution could have been three or more times greater in one federal

judicial district than in an adjacent district.

An important factor in determining whether an offender was ordered to

pay a fine or restitution was the type of offense committed. While 6

percent of offenders sentenced for immigration offenses were ordered to

pay a fine, almost one-third of property offenders were ordered to pay

fines. Similarly, while 1 percent of drug offenders were ordered to pay

restitution, almost two-thirds of fraud offenders were ordered to pay

restitution.

Besides the type of offense committed, other factors, based on our

statistical analysis, that were associated with whether an offender was

The Importance of the

Judicial Circuit or

District in the

Likelihood of an

Offender’s Being

Ordered to Pay a Fine

or Restitution
Statement

Federal Courts: Differences Exist in Ordering Fines and Restitution

Page 3 GAO/T-GGD-99-95

ordered to pay included sex, race, education, citizenship, length of

sentence, and type of sentence imposed, such as prison, probation, or an

alternative.

We controlled for all those factors for four specific types of offenses in our

multivariate statistical analysis, and the judicial circuit or district in which

the offender was sentenced continued to be a major factor in determining

whether an offender was ordered to pay a fine or restitution. For example,

offenders convicted of fraud in the Eastern District of Pennsylvania, which

includes Philadelphia, were 13 times more likely to be ordered to pay a

fine and 3 times more likely to be ordered to pay restitution than fraud

offenders in the Eastern District of New York, which includes Brooklyn.

Other examples include the following:

• Offenders convicted of fraud offenses in the Middle District of Florida,

which includes Orlando, were four times more likely to be ordered to pay

restitution than those convicted of the same offense in the Central District

of California, which includes Los Angeles.

• Offenders convicted of drug trafficking offenses were 99 times more likely

to be ordered to pay a fine in the Western District of Texas, which includes

San Antonio, than they were in the Southern District of California, which

includes San Diego.

• Offenders convicted of larceny offenses were 177 times more likely to be

ordered to pay a fine in the Middle District of Georgia, which includes

Macon, than in the Southern District of Florida, which includes Miami.

Some court officials and prosecutors provided explanations of why

differences existed among the districts. Some attributed the differences to

the nature and type of offenses committed or types of offenders sentenced

in the districts. Some officials believed that the culture, or management

style, in the judicial district among the prosecutors and court officials

contributed to whether offenders were fined or ordered to pay restitution.

The culture included how prosecutors and court officials worked together

to identify victims and their losses, among other factors.
Statement

Federal Courts: Differences Exist in Ordering Fines and Restitution

Page 4 GAO/T-GGD-99-95

Although the imposition of restitution for certain offenses became

mandatory with the passage of MVRA, the percentage of offenders, overall,

ordered to pay restitution during fiscal year 1997 actually declined to 12

percent for those who were covered by MVRA’s provisions, down from 26

percent for those who were not. During fiscal year 1997, about 45 percent

of offenders sentenced under USSC Guidelines were subject to MVRA’s

provisions, and 55 percent were not.

MVRA’s amendments are to be, to the extent constitutionally permissible,

effective for sentencing proceedings in cases in which the defendant is

convicted on or after the date of enactment, which was April 24, 1996.

However, because of an ex post facto issue, DOJ has issued guidelines that

any provisions of MVRA for determining whether to impose restitution or

the amount of restitution would be applied only prospectively to offenses

committed on or after April 24, 1996. In general, the ex post facto clause

of the U.S. Constitution has been interpreted to prohibit the application of

a law that increases the primary penalty for conduct after its commission.

For our analysis, we used DOJ’s guidelines in determining whether an

offender was or was not subject to MVRA’s provisions.

While the overall percentage of offenders ordered to pay restitution

declined, our multivariate statistical analysis showed the following

inconsistent results across the three types of offenses we analyzed:

• The likelihood of an offender’s being ordered to pay restitution for a

larceny offense decreased by almost half;

• The likelihood of an offender’s being ordered to pay restitution for a

robbery offense increased by almost half; and

• The likelihood of an offender’s being ordered to pay restitution for a fraud

offense decreased slightly.

In discussing our results, some court officials and prosecutors said that it

was still too early to assess the full impact of MVRA. Some officials

commented that time was needed to become familiar with and implement

MVRA, especially on the part of the Assistant U.S. Attorneys who

prosecute cases covered by MVRA. Prosecutors in one district

acknowledged that they were not yet fully implementing the law. In their

written responses to a draft of our report, both the Executive Office of the

U.S. Attorneys and USSC cited training efforts planned for court officials

and prosecutors on MVRA. DOJ, in their comments, acknowledged that,

The Effect of

Mandatory Restitution

Has Been Mixed, but

Overall the Percentage

of Offenders Ordered

to Pay Has Declined
Statement

Federal Courts: Differences Exist in Ordering Fines and Restitution

Page 5 GAO/T-GGD-99-95

while a number of steps have been taken, more remains to be done to

increase the number of cases in which restitution is imposed.

Although we selected larceny, fraud, and robbery because of the likelihood

of a victim’s being due restitution, a substantial percentage of offenders—

about one-third to two-thirds of offenders sentenced—were still not

ordered to pay restitution, even when their crimes were committed after

MVRA became effective. Court officials and prosecutors provided some

reasons why restitution might not have been ordered in these cases. In

some cases, stolen money or assets might have been recovered. In other

cases, an offender might have paid the restitution prior to sentencing,

removing the need for a restitution order. Another reason cited by officials

was that the offense might have been an attempted fraud or attempted

robbery for which the offender was arrested prior to obtaining money from

the victim. Some officials also cited an exception to MVRA in ordering

mandatory restitution, such as in cases where the number of victims is so

large that it makes paying restitution impracticable. One district had a

number of telemarketing schemes in which large numbers of victims were

defrauded of small amounts. It was not practical to identify all victims and

obtain restitution for them.

Although offender characteristics, type of offense, and the nature of the

sentence played a role, the judicial circuit or district where an offender

was sentenced was a major factor in determining the likelihood of an

offender’s being ordered to pay a fine or restitution during fiscal year 1997.

This variation among judicial circuits and districts occurred overall for all

federal offenders sentenced under sentencing guidelines during that year;

and, although occurring less, this variation persisted when we performed

multivariate statistical analyses for federal offenders sentenced under

sentencing guidelines for four types of offenses. The large statistical

variation among circuits and districts raises a question, on a broad level,

about whether the goal of uniformity in the imposition of fines and

restitution is being met. Under current conditions, offenders could be

much more likely in some jurisdictions than in others to be ordered to pay

a fine or restitution for the same type of crime.

Although MVRA was intended to eliminate much of the discretion judges

previously had in waiving restitution for certain types of crime, the overall

percentages of offenders ordered to pay restitution has declined. Of the

three offenses we analyzed, the percentages of robbery offenders ordered

to pay restitution increased, while the percentages of larceny and fraud

offenders decreased. However, there may be mitigating circumstances,

Conclusions
Statement

Federal Courts: Differences Exist in Ordering Fines and Restitution

Page 6 GAO/T-GGD-99-95

such as recovery of stolen money that help explain why restitution was not

ordered in a particular case.

This concludes my prepared statement, Mr. Chairman. I would be pleased

to answer any questions you or other Members of the Subcommittee may

have.
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