II

104TH CONGRESS

1ST SESSION S. 173

To provide for restitution of victims of crimes, and for other purposes.

IN THE SENATE OF THE UNITED STATES

JANUARY 6 (legislative day, JANUARY 5), 1995

Mr. NICKLES (for himself, Mr. KYL, Mr. THURMOND, and Mr. GRASSLEY) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

A BILL

To provide for restitution of victims of crimes, and for other

purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Crime Victims Restitu5 tion Act of 1995’’.

6 SEC. 2. ORDER OF RESTITUTION.

7 Section 3663 of title 18, United States Code, is

8 amended—

9 (1) in subsection (a)—
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1 (A) by striking ‘‘may order’’ and inserting

2 ‘‘shall order’’; and

3 (B) by adding at the end the following new

4 paragraph:

5 ‘‘(4) In addition to ordering restitution of the victim

6 of the offense of which a defendant is convicted, a court

7 may order restitution of any person who, as shown by a

8 preponderance of evidence, was harmed physically, emo9 tionally, or pecuniarily, by unlawful conduct of the defend10 ant during—

11 ‘‘(A) the criminal episode during which the of12 fense occurred; or

13 ‘‘(B) the course of a scheme, conspiracy, or pat14 tern of unlawful activity related to the offense.’’;

15 (2) in subsection (b)(1)(B), by striking ‘‘im16 practical’’ and inserting ‘‘impracticable’’;

17 (3) in subsection (b)(2), by inserting ‘‘emotional

18 or’’ after ‘‘resulting in’’;

19 (4) in subsection (c), by striking ‘‘If the Court

20 decides to order restitution under this section, the’’

21 and inserting ‘‘The’’;

22 (5) by striking subsections (d), (e), (f), (g), and

23 (h);

24 (6) by redesignating subsection (i) as subsection

25 (m); and
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1 (7) by inserting after subsection (c) the follow2 ing new subsections:

3 ‘‘(d)(1) The court shall order restitution to a victim

4 in the full amount of the victim’s losses as determined by

5 the court and without consideration of—

6 ‘‘(A) the economic circumstances of the of7 fender; or

8 ‘‘(B) the fact that a victim has received or is

9 entitled to receive compensation with respect to a

10 loss from insurance or any other source.

11 ‘‘(2) Upon determination of the amount of restitution

12 owed to each victim, the court shall specify in the restitu13 tion order the manner in which and the schedule according

14 to which the restitution is to be paid, in consideration of—

15 ‘‘(A) the financial resources and other assets of

16 the offender;

17 ‘‘(B) projected earnings and other income of

18 the offender; and

19 ‘‘(C) any financial obligations of the offender,

20 including obligations to dependents.

21 ‘‘(3) A restoration order may direct the offender to

22 make a single, lump-sum payment, partial payment at

23 specified intervals, or such in-kind payments as may be

24 agreeable to the victim and the offender.
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1 ‘‘(4) An in-kind payment described in paragraph (3)

2 may be in the form of—

3 ‘‘(A) return of property;

4 ‘‘(B) replacement of property; or

5 ‘‘(C) services rendered to the victim or to a per6 son or organization other than the victim.

7 ‘‘(e) When the court finds that more than 1 offender

8 has contributed to the loss of a victim, the court may make

9 each offender liable for payment of the full amount of res10 titution or may apportion liability among the offenders to

11 reflect the level of contribution and economic cir12 cumstances of each offender.

13 ‘‘(f) When the court finds that more than 1 victim

14 has sustained a loss requiring restitution by an offender,

15 the court shall order full restitution of each victim but may

16 provide for different payment schedules to reflect the eco17 nomic circumstances of each victim.

18 ‘‘(g)(1) If the victim has received or is entitled to re19 ceive compensation with respect to a loss from insurance

20 or any other source, the court shall order that restitution

21 be paid to the person who provided or is obligated to pro22 vide the compensation, but the restitution order shall pro23 vide that all restitution of victims required by the order

24 be paid to the victims before any restitution is paid to

25 such a provider of compensation.
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1 ‘‘(2) The issuance of a restitution order shall not af2 fect the entitlement of a victim to receive compensation

3 with respect to a loss from insurance or any other source

4 until the payments actually received by the victim under

5 the restitution order fully compensate the victim for the

6 loss, at which time a person that has provided compensa7 tion to the victim shall be entitled to receive any payments

8 remaining to be paid under the restitution order.

9 ‘‘(3) Any amount paid to a victim under an order of

10 restitution shall be set off against any amount later recov11 ered as compensatory damages by the victim in—

12 ‘‘(A) any Federal civil proceeding; and

13 ‘‘(B) any State civil proceeding, to the extent

14 provided by the law of the State.

15 ‘‘(h) A restitution order shall provide that—

16 ‘‘(1) all fines, penalties, costs, restitution pay17 ments and other forms of transfers of money or

18 property made pursuant to the sentence of the court

19 shall be made by the offender to an entity des20 ignated by the Director of the Administrative Office

21 of the United States Courts for accounting and pay22 ment by the entity in accordance with this sub23 section;
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1 ‘‘(2) the entity designated by the Director of

2 the Administrative Office of the United States

3 Courts shall—

4 ‘‘(A) log all transfers in a manner that

5 tracks the offender’s obligations and the cur6 rent status in meeting those obligations, unless,

7 after efforts have been made to enforce the res8 titution order and it appears that compliance

9 cannot be obtained, the court determines that

10 continued recordkeeping under this subpara11 graph would not be useful;

12 ‘‘(B) notify the court and the interested

13 parties when an offender is 90 days in arrears

14 in meeting those obligations; and

15 ‘‘(C) disburse money received from an of16 fender so that each of the following obligations

17 is paid in full in the following sequence:

18 ‘‘(i) a penalty assessment under sec19 tion 3013 of title 18, United States Code;

20 ‘‘(ii) restitution of all victims; and

21 ‘‘(iii) all other fines, penalties, costs,

22 and other payments required under the

23 sentence; and

24 ‘‘(3) the offender shall advise the entity des25 ignated by the Director of the Administrative Office
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1 of the United States Courts of any change in the of2 fender’s address during the term of the restitution

3 order.

4 ‘‘(i) A restitution order shall constitute a lien against

5 all property of the offender and may be recorded in any

6 Federal or State office for the recording of liens against

7 real or personal property.

8 ‘‘(j) Compliance with the schedule of payment and

9 other terms of a restitution order shall be a condition of

10 any probation, parole, or other form of release of an of11 fender. If a defendant fails to comply with a restitution

12 order, the court may revoke probation or a term of super13 vised release, modify the term or conditions of probation

14 or a term of supervised release, hold the defendant in con15 tempt of court, enter a restraining order or injunction,

16 order the sale of property of the defendant, accept a per17 formance bond, or take any other action necessary to ob18 tain compliance with the restitution order. In determining

19 what action to take, the court shall consider the defend20 ant’s employment status, earning ability, financial re21 sources, the willfulness in failing to comply with the res22 titution order, and any other circumstances that may have

23 a bearing on the defendant’s ability to comply with the

24 restitution order.

25 ‘‘(k) An order of restitution may be enforced—
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1 ‘‘(1) by the United States—

2 ‘‘(A) in the manner provided for the collec3 tion and payment of fines in subchapter (B) of

4 chapter 229 of this title; or

5 ‘‘(B) in the same manner as a judgment in

6 a civil action; and

7 ‘‘(2) by a victim named in the order to receive

8 the restitution, in the same manner as a judgment

9 in a civil action.

10 ‘‘(l) A victim or the offender may petition the court

11 at any time to modify a restitution order as appropriate

12 in view of a change in the economic circumstances of the

13 offender.’’.

14 SEC. 3. PROCEDURE FOR ISSUING ORDER OF RESTITUTION.

15 Section 3664 of title 18, United States Code, is

16 amended—

17 (1) by striking subsection (a);

18 (2) by redesignating subsections (b), (c), (d),

19 and (e) as subsections (a), (b), (c), and (d), respec20 tively;

21 (3) by amending subsection (a), as redesignated

22 by paragraph (2), to read as follows:

23 ‘‘(a) The court may order the probation service of the

24 court to obtain information pertaining to the amount of

25 loss sustained by any victim as a result of the offense,
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1 the financial resources of the defendant, the financial

2 needs and earning ability of the defendant and the defend3 ant’s dependents, and such other factors as the court

4 deems appropriate. The probation service of the court

5 shall include the information collected in the report of

6 presentence investigation or in a separate report, as the

7 court directs.’’; and

8 (4) by adding at the end the following new sub9 section:

10 ‘‘(e) The court may refer any issue arising in connec11 tion with a proposed order of restitution to a magistrate

12 or special master for proposed findings of fact and rec13 ommendations as to disposition, subject to a de novo de14 termination of the issue by the court.’’.

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