Federal Criminal Restitution: Factors to Consider for a Potential Expansion of Federal Courts' Authority to Order Restitution
Released: 2017-10-12T00:00:00

Letter

Background

Stakeholders Involved in the Federal Restitution Process

Victims of federal crimes may be compensated for their losses through criminal proceedings when a federal court orders restitution pursuant to statute. Restitution is part of the sentencing process for federal offenders and there are four key groups of stakeholders involved:

Judges and court officials. The federal judiciary consists of a system of courts that has the critical responsibility of ensuring the fair and swift administration of justice in the United States and handles all federal civil, criminal, and bankruptcy cases and reviews of federal administrative agency cases throughout the country. The federal courts have various responsibilities in the restitution process. Federal judges are responsible for ordering the proper amount and type of restitution, including payment schedules and modifications. Federal probation officers are responsible for the presentence report, which must include information for the court to use in fashioning a restitution order, including, among other things, a complete accounting of the losses to each victim and information about the economic circumstances of each defendant. Following a defendant’s sentencing and the imposition of restitution, probation officers supervise offenders to ensure compliance with orders for restitution, including conducting ongoing financial investigations, supporting U.S. Attorneys’ Offices in the collection and enforcement of restitution orders, notifying the federal court of an offender’s failure to pay outstanding restitution, and making recommendations to amend orders based on changes in an offender’s ability to pay. Clerks of federal courts are responsible for receipting and disbursing restitution payments and notifying DOJ of such. In addition, the Director of the Administrative Office of the U.S. Courts has statutory responsibilities related to the restitution process, including establishing procedures and mechanisms within the judicial branch for processing fines, restitution, forfeitures of bail bonds or collateral, and assessments. The Judicial Conference of the United States, a body of 27 judges over which the Chief Justice of the United States presides, is the judiciary’s principal policymaking body and operates through a network of committees created to address and advise on a wide variety of subjects such as budget, criminal law, and court administration. Given the role of the judiciary in the restitution process, the Judicial Conference has taken policy positions on various restitution-related issues and has supported various legislative proposals to improve the process.

Prosecutors and DOJ officials. DOJ officials are responsible for prosecuting federal offenses, identifying victims of crime and informing them of restitution to which they may be entitled, identifying victim losses and harms that are subject to restitution after consulting with victims and providing that information to probation officers, demonstrating the amount of loss sustained by the victim, enforcing orders of restitution, and collecting criminal debt, including unpaid restitution. Various entities and officials within DOJ are responsible for these activities, including federal prosecutors in the Criminal Division and the U.S. Attorneys’ Offices, and their respective Financial Litigation Units.

Victims. A federal crime victim is a person directly and proximately harmed as the result of a federal offense. Federal crime victims are entitled to full and timely restitution as provided in law. Victims may provide information to prosecutors, probation officers, and to the court about their losses and have a right to be heard at sentencing, but are not required to participate in any phase of the restitution proceedings.

Defendants and their counsel. Defendants who commit federal crimes where an identifiable victim suffered a physical injury or monetary loss are generally required to pay restitution. Defendants are required to submit information about their financial resources and the financial needs and earning ability of their dependents to the court and have the burden of demonstrating these resources and needs in any restitution proceedings. Defendants are generally represented by counsel in criminal proceedings and according to the judiciary approximately 90 percent qualify for court-appointed counsel under the Criminal Justice Act because they are financially unable to retain counsel in federal criminal proceedings. Court-appointed counsel is provided by Federal Defender Organizations and panel attorneys. A defendant may be convicted pursuant to plea agreement with the government or after a trial; more than 90 percent of defendants plead guilty rather than go to trial. A defendant is referred to as an offender following conviction of an offense.

Compensation in the Restitution Process

Restitution is only available to victims and for harms as statutorily authorized. Congress passed the MVRA in 1996, which substantially revised the restitution process. The legislative history reflects the balancing of competing interests—including ensuring that the loss to crime victims is recognized, that they receive the restitution that they are due, and also that the offender realizes the damages caused by the offense and pays the debt owed to the victim as well to society. As provided in the legislative history, one of the ways that the law sought to balance the application of mandatory restitution was by limiting it to the instances where a named identifiable victim suffered a physical injury or monetary loss as a direct and proximate result of the defendant’s offense of conviction. This means that the victim would not have been harmed “but for” the conduct underlying the offense of conviction and also that the harm was proximately caused by the conduct. Proximately caused means that the causal nexus between the conduct and the loss is not too attenuated either factually or temporally. As such, a defendant is not held liable for downstream effects of an act where there were additional, intervening causes not sufficiently related to the offense. For example, a rapist would not be held responsible for the death of a hospitalized rape victim who died in a hospital fire. In addition, the loss caused by the defendant’s conduct underlying the offense of conviction establishes the outer limits of the restitution order. This means that harms caused by the defendant’s conduct that were related to, but outside the scope of, the crime of conviction cannot be compensated through restitution. For example, a defendant who was convicted of illegally possessing a firearm but acquitted of using the firearm to shoot someone would not be liable for restitution for medical costs for the shooting victim.

The restitution statutes specify the types of harm that may be compensated, and federal case law interpreting these statutes provides guidance to courts when ordering restitution. For example, when a crime results in bodily injury to a victim, compensable expenses include the costs of medical and other services related to physical, psychiatric, and psychological care; costs for necessary physical and occupational therapy and rehabilitation; and reimbursement for lost income as a result of the offense, among other enumerated losses. Courts have also ordered restitution for a victim’s actual losses that were proximately caused by the defendant’s conduct even when not explicitly listed in statute. When restitution is ordered by the court, it is to be in the full amount of each victim’s losses without consideration of the economic circumstances of the defendant. During a defendant’s sentencing, additional hearings may be held to examine losses to victims for restitution and prosecutors are responsible for proving and litigating issues related to victims’ losses. Restitution may be imposed by the federal courts up to 90 days after sentencing if additional time is needed by the court to locate victims and calculate losses. In some cases, courts can decline to order restitution, such as when the court determines that fashioning an order of restitution would complicate or prolong the sentencing process so much that the need to provide restitution is outweighed by the burden on the sentencing process.

Separate from criminal restitution, victims may seek compensation from the offender by pursuing litigation at their own expense through a civil proceeding in a federal, state, or local court. In the United States, criminal and civil proceedings are separate legal systems subject to different laws, standards, and rules of procedure. The types of harms for which a victim may receive compensation differ in a civil proceeding. For example, federal criminal courts may order restitution to reimburse a victim for medical expenses, but cannot order compensation for pain and suffering caused by a crime. However, a victim may seek compensation for pain and suffering by filing a civil action against the defendant, as well as for other types of damages that are not available through restitution. Other types of civil remedies not compensable as criminal restitution include intended harm, punitive damages, breach of contract, and disgorgement of ill-gotten gains, among others. Figure 1 below outlines the steps taken for compensation of victims of federal crimes through federal criminal restitution and civil proceedings.

Total Restitution Ordered Since 1996

According to USSC data for fiscal years 1996 through 2016, the percentage of offenders ordered to pay restitution by federal courts has remained fairly steady. From fiscal years 1996 through 2016, an average of 15 percent of individual offenders and 32 percent of organizational offenders annually were ordered to pay restitution by the federal courts (see fig. 2). For more information on the restitution imposed by the federal courts from fiscal years 1996 through 2016, see appendix II.

Collection of Restitution

We have previously reported on issues related to the collection of federal restitution and currently have ongoing work on DOJ’s collection of restitution pursuant to the Justice for All Reauthorization Act of 2016. According to data DOJ provided to us, the total outstanding restitution debt owed in federal cases as of the end of fiscal year 2016 was $110.2 billion. DOJ, through its U.S. Attorneys’ Offices’ Financial Litigation Units, is responsible for collecting restitution debt from offenders. This collection typically begins after offenders are sentenced and ordered to pay restitution and includes enforcement actions such as filing garnishments and liens. We noted in our 2001 and 2004 reports that collection of outstanding restitution debt is inherently difficult due to a number of factors, such as offenders who may be incarcerated or have minimal earning capacity and the MVRA requirement that the assessment of restitution be based on actual loss and not on an offender’s ability to pay. In 2005, we reported that court-ordered restitution amounts far exceed likely collections for crime victims in selected financial fraud cases. Specifically, we found that these offenders, who had either been high-ranking officials of companies or operated their own businesses, pleaded guilty to crimes for which the courts ordered restitution totaling about $568 million to victims. As of the completion of our fieldwork, which was up to 8 years after the offenders’ sentencing, court records showed that amounts collected for the victims in these cases totaled only about $40 million, or about 7 percent of the ordered restitution.

Stakeholders Identified Various Factors Related to the Potential Expansion of Federal Courts’ Authority to Order Restitution

Stakeholders we interviewed identified various factors related to the potential expansion of federal courts’ authority to order restitution in the four areas listed in the Justice for All Reauthorization Act of 2016: (1) to apply to victims who have suffered harm, injury, or loss that would not have occurred but for the defendant’s related conduct; (2) in the case of an offense resulting in the victim’s death, to allow the court to use its discretion to award the income lost by the victim’s surviving family members or estate as a result of the victim’s death; (3) to require that the defendant pay to the victim an amount determined by the court to restore the victim to the position he or she would have been in had the defendant not committed the offense; and (4) to require the defendant compensate the victim for any injury, harm, or loss, including emotional distress, that occurred as a result of the offense. Stakeholders also identified additional factors to consider, beyond the ones identified for the four provisions above, for potential broadening of courts’ authority to order restitution generally. For a summary of the provisions and factors cited by stakeholders, see appendix I.

Factors to Consider in a Potential Expansion of Restitution Authority if it were to Include a Defendant’s Related Conduct and Eliminate the Proximate Cause Requirement

Related Conduct

Federal courts have the authority to order defendants to pay restitution for a victim’s losses that resulted from the defendant’s conduct underlying the offense of conviction. However, at times, a defendant’s related conduct can be broader than the offense of conviction and can include criminal conduct for which the defendant’s guilt was not established either by trial or plea agreement with the government. For example, in a case before the Fourth Circuit where restitution was not allowed for conduct that was broader than the offense of conviction, the government asserted that the defendant was the ringleader of a nationwide pickpocketing ring and submitted a list of victims for restitution that included five financial institutions and four individuals who had suffered losses. However, because the defendant had pleaded guilty to, and was convicted for, fraudulent use of a credit card related to one individual on one date—and the defendant’s offense did not involve as an element a scheme, conspiracy, or pattern—the court determined that restitution was not proper for the additional victims because they were not harmed by the conduct underlying the offense of conviction. On the other hand, when a defendant has been convicted of an offense that involves as an element a scheme, conspiracy, or pattern, the court may order restitution for direct harm caused by that scheme, conspiracy, or pattern. For example, in another case involving credit card fraud, because the defendant pleaded guilty to and was convicted of conspiracy to traffic in counterfeit credit cards—in contrast to the previous case where the defendant was convicted of only one fraudulent use—the Eleventh Circuit held that the sentencing court could order a defendant to pay restitution for losses from additional credit card fraud that were to advance the conspiracy.

Stakeholders we interviewed identified the following factors to consider if federal courts’ authority were to be broadened to allow a defendant’s related conduct to be included in an order for restitution:

Constitutional issues. Eight of 10 stakeholders we spoke with identified potential constitutional issues if the federal courts could order restitution for a defendant’s related conduct. For example, two stakeholders representing defendants and an association representing federal prosecutors told us that including a defendant’s related conduct in orders for restitution could result in potential violations of a defendant’s rights under the Fifth Amendment’s Due Process Clause, which provides that no person shall be deprived of life, liberty, or property without due process of law. This was also a concern noted in the legislative history of the MVRA, and an individual knowledgeable about restitution we interviewed noted that the Supreme Court has also suggested that due process could be a concern if the court were to order federal criminal restitution beyond the conduct underlying the conviction.

Increased complexity to determine losses. Four of 10 stakeholders we spoke with stated that if the authority of federal courts to order restitution were broadened to allow inclusion of harms for a defendant’s related conduct, there would be increased complexity to determine losses for restitution. For example, DOJ officials told us that inclusion of a defendant’s related conduct would allow restitution to be open to a larger pool of potential victims, and identifying and calculating losses for all victims with a nexus to the offense of conviction could become an impossible task. An association representing federal prosecutors stated that this increased complexity could have the effect of federal courts ordering less restitution through the exception for complex cases, which would negatively impact victims.

DOJ’s practices for plea bargaining. In contrast, two individuals we spoke with who represent victims stated that prosecutors could more consistently follow DOJ’s guidelines to include a defendant’s related conduct in plea agreements without expanding federal courts’ authority to order restitution. DOJ guidelines, which are based on statutory direction, provide that prosecutors must consider requesting full restitution to all victims for all charges contained in the indictment, without regard to the counts to which the defendant actually pleaded guilty. In other words, when DOJ and the defendant agree to certain terms as part of a plea agreement in which the defendant pleads guilty to one or more charged offenses, or lesser or related offenses, prosecutors must consider requesting the defendant pay restitution for all of the charges, not just the ones to which the defendant is pleading guilty. As a result, federal courts may order restitution pursuant to the plea agreement for losses sustained by crime victims for related conduct or criminal conduct that is not part of the offense of conviction.

Proximate Cause

Federal courts currently have the authority to order an offender to pay restitution to victims who have suffered harms as a direct and proximate consequence of the crime of conviction. This means that the harm must have been not only caused by the offense, as a matter of fact, but also that it was reasonably foreseeable as a result of the offense. For example, courts have allowed damage caused by the escape from a robbery—such as damage to police cars hit during a car chase—to be compensable as restitution because the flight was casually related to the bank robbery. Although 5 of 10 stakeholders stated that the proximate harm requirement does not generally present challenges related to federal courts’ authority to order restitution, stakeholders identified additional factors to consider if the federal courts’ authority were to be expanded to eliminate the proximate cause requirement:

Additional sentencing-related hearings and litigation. Three of 10 stakeholders we interviewed stated that eliminating the proximate harm requirement could result in prolonged sentencing for defendants due to additional sentencing-related hearings and litigation. For example, judiciary officials and an association representing federal prosecutors stated that if federal courts’ authority to order restitution were expanded to eliminate the proximate harm requirement, more litigation would be required during sentencing to examine harms to victims and to determine how losses related to the offense of conviction.

Plea bargaining could be affected. Two of 10 stakeholders we interviewed stated that eliminating the proximate harm requirement would impact plea bargaining between defendants and DOJ. For example, an individual knowledgeable about federal restitution stated that eliminating proximate harm would hinder plea bargaining as during plea agreement negotiations a defendant would no longer have a sense of how much federal criminal restitution could be ordered. At the time the MVRA was passed, Congress also recognized the central role of plea bargaining in the federal criminal justice system with the legislative history of the MVRA noting the intent that the legislation not impair the role of plea bargaining.

Factors to Consider in the Potential Expansion of Restitution to Include Income Lost by Deceased Victims and Their Family Members

In cases involving the death of a crime victim, federal courts may order restitution for losses to be paid to a deceased crime victim’s surviving family members or estate, including for funeral expenses, as applicable. Further, according to 6 of 10 stakeholders we interviewed, federal courts currently have the authority to order compensation for future lost income of a deceased crime victim’s family member or estate due to precedent established in case law. For example, the Tenth Circuit held that restitution for the future lost income of a three-month-old victim of voluntary manslaughter was not precluded by the MVRA; thus a court may exercise its discretion in declining to grant an award, or, as it did in this case, undertake such proceedings. In a Ninth Circuit case, the court held that “restitution for future lost income may be ordered under the MVRA so long as it is not based upon speculation, but is reasonably calculable,” and returned the case to the district court to redetermine the amount of restitution to be awarded.

Stakeholders we interviewed also identified the following factors to consider if federal courts’ authority were to be expanded to include compensation for the future lost income of a deceased crime victim and to compensate the deceased victim’s surviving family members for their lost income as a result of the victim’s death: Increased victim compensation awards. Four of 10 stakeholders we interviewed stated that expanding federal courts’ authority to include compensation for future lost income of a deceased crime victim could result in more compensation awarded through restitution. For example, three stakeholders representing victims stated if this provision were specified or made explicit in statute, it would be more likely that federal courts would order compensation for the future lost income of a deceased crime victim. One of the stakeholders added that having such loss specified and enumerated in restitution statutes would ensure it is considered during the restitution process and is less likely to be challenged during appeal. Further, another stakeholder representing victims stated that including the surviving family members’ lost income in a restitution order could allow for compensation of those family members who lost income prior to a victim’s death, such as in cases where those family members provided care to a victim prior to the victim’s death.

Complexity of calculation and need for experts. Three of 10 stakeholders we interviewed stated that determining a deceased crime victim’s future and family members’ lost income would add complexity to the restitution process. For example, an association representing federal prosecutors stated that it would be difficult for federal probation officers and prosecutors to determine the amount of future lost income for deceased victims as that area of specialization is currently in civil law. In addition, DOJ officials stated that the complexity and need for experts to make these specialized calculations could increase the cost of prosecution given the government’s burden to prove victim losses.

Suitability of criminal versus civil proceedings. Three of 10 stakeholders we interviewed stated that compensation for a deceased crime victim’s future and family members’ lost income is more appropriate for litigation through civil proceedings rather than combining or merging such litigation in a federal criminal proceeding. For example, an association representing defendants stated that federal criminal proceedings are not suitable venues to fairly vet and litigate this type of victim issue. This stakeholder further stated that issues of this type are routinely litigated vigorously in civil proceedings and involve extensive discovery practices, such as taking of depositions, exchanges of documents, and assessments by competing experts. An association representing federal prosecutors additionally noted that federal prosecutors are not well positioned to handle typical civil losses in criminal trials.

Sentencing of defendants could be prolonged. Two of 10 stakeholders we interviewed stated that including a deceased crime victim’s future and family members’ lost income in an order for restitution could result in a defendant’s sentencing being prolonged. For example, judiciary officials stated that the sentencing of defendants could take more time due to the need for multiple hearings to examine losses and calculate a deceased crime victim’s future lost income.

Collectability of debt due to these offenders’ ability to pay. Two of 10 stakeholders stated that the potential collectability of restitution from offenders for a deceased crime victim’s future and family members’ lost income should be considered. For example, an association representing federal prosecutors stated that these offenders are most likely to be incarcerated with the least ability to pay. As a result, the amount of resources needed to order restitution compared to collectability of the debt for a deceased crime victim’s future lost income should be considered. Further, according to that stakeholder, resources—such as prosecutorial expertise, money to hire experts, judicial resources like probation officers—need to be weighed against the collectability of the debt. This issue was also described in the legislative history of the MVRA: significant number of defendants required to pay restitution…will be indigent … many…may also be sentenced to prison terms as well, making it unlikely that they will be able to make significant payments… At the same time, these factors do not obviate the victim’s right to restitution or the need that defendants be ordered to pay restitution.

Factors to Consider in the Potential Expansion of Restitution to Restore the Victim to His or Her Position Had the Offense Not Been Committed

According to 6 of 10 stakeholders we interviewed, the provision “to require that the defendant pay to the victim an amount determined by the court to restore the victim to the position he or she would have been in had the defendant not committed the offense” is already the goal of federal restitution. These stakeholders stated that this is established in case law and is not an expansion of federal courts’ current authority. Other stakeholders we interviewed identified the following factor to consider if federal courts’ authority were to be expanded to include the provision “to require that the defendant pay to the victim an amount determined by the court to restore the victim to the position he or she would have been in had the defendant not committed the offense”:

Expansion of authority to include general restitution. Three of 10 stakeholders we interviewed stated that the provision would expand federal courts’ authority to order restitution by allowing general restitution, meaning courts would have more discretion to determine awards for all harms that victims suffered in order to restore the victim to his or her pre-offense condition. Further, an association representing victims stated that federal courts’ authority to order restitution is listed as elements or categories of losses. For example, losses such as the cost of necessary physical and occupational therapy and rehabilitation, and necessary funeral and related services, among others. This association explained that by including a provision for general restitution, the courts would be able to order restitution to victims for any losses outside of those categories, which would function as a catchall for all victim harm.

Factors to Consider in the Potential Expansion of Restitution to Include Any Injury, Harm, or Loss, Including Emotional Distress That Occurred as a Result of an Offense

Federal courts may order restitution for actual losses—in other words, these must be tangible or “out-of-pocket” losses, and they must be supported by the record. This includes, for example, reimbursement of medical expenses for bodily injuries resulting from the victimizing offense. However, federal courts are not authorized to order restitution for losses such as pain and suffering and emotional distress to crime victims. For example, in a case where the defendant was convicted of committing a brutal hate crime against the victim, leaving him with severe physical injuries and depression, among other harms, the sentencing court acknowledged that it did not have authority to award restitution for pain and suffering and noted that the victim would be allowed to pursue civil remedies. Stakeholders we interviewed identified the following factors to consider if federal courts’ authority were expanded to allow any injury, harm, or loss, including emotional distress, to be included in an order for restitution:

Suitability of criminal versus civil proceedings. Five of 10 stakeholders we interviewed stated that including compensation to victims for any injury, harm, or loss, including emotional distress, in restitution orders raises issues related to the types of harms that should be compensated in civil versus criminal proceedings. For example, a stakeholder representing defendants stated that federal criminal law is not suited to determine injuries such as emotional distress and pain and suffering, whereas the civil system is set up to handle these kinds of issues and losses. Further, an association representing federal prosecutors stated that federal prosecutors and federal probation officers in criminal cases lack the specialized skills to determine losses for cases involving compensation for pain, suffering, and emotional distress. This was an issue that was considered during passage of the MVRA as well, as the report accompanying the MVRA provides, “It is the committee’s intent that courts order full restitution to all identifiable victims of covered offenses, while guaranteeing that the sentencing phase of criminal trials do not become fora for the determination of facts and issues better suited to civil proceedings.”

Increased complexity to determine losses. Four of 10 stakeholders we interviewed stated that determining losses such as emotional distress and pain and suffering would add complexity to the restitution process. For example, DOJ officials stated that pain and suffering and emotional distress are not easily quantified and restitution hearings to examine such losses would involve experts trying to prove these kinds of losses.

Stakeholders Identified Additional Factors to Consider Related to the Potential Expansion of Courts’ Authority to Award Restitution

Stakeholders we interviewed identified the following factors to consider related to the potential broadening of courts’ authority to order restitution generally, in addition to the factors discussed above associated with particular expansions of federal courts’ authority to order restitution: Increased restitution debt and collection challenges. Seven of 10 stakeholders we interviewed told us that increased restitution debt and collectability challenges should be considered in the potential broadening of federal courts’ authority to order restitution. For example, two stakeholders representing defendants stated that offenders often lack the financial resources to pay restitution. Under the MVRA, federal courts must order mandatory restitution without consideration of a defendant’s financial resources which has resulted in large amounts of uncollected federal restitution debt. These two stakeholders stated that by broadening federal courts’ authority to order restitution, the amount of uncollected restitution debt owed to victims would continue to increase. One of these stakeholders further suggested that the addition of secondary restitution (i.e., additional victims entitled to compensation) could have the effect of reducing the amount paid to the primary victims because all classes of victims will be forced to compete for payment on restitution awards that will often far exceed an offender’s ability to pay. According to judiciary officials, adding to the uncollected restitution debt would lead to further collection challenges, including the additional DOJ efforts needed to collect more restitution debt and additional supervision of offender restitution payments by probation officers. These issues were also observed during the passage of the MVRA. The report accompanying the law states that the Chair of the Criminal Law Committee of the Judicial Conference of the United States had testified before the Senate Judiciary Committee that 85 percent of all federal defendants are indigent at the time of sentencing and mandatory restitution would not lead to an appreciable increase in victim compensation; however, the report noted the Committee’s view of the benefits of even nominal payments to victims as well as the potential penalogical benefits of requiring the offender to be accountable for the harm caused to the victim.

Suitability of criminal versus civil proceedings. Seven of 10 stakeholders we interviewed told us that the suitability of criminal versus civil proceedings should be considered in the potential broadening of federal courts’ authority to order restitution. According to judiciary officials, a system has been developed with rules to litigate damages in civil proceedings which are not included within criminal trials. Further, an association representing defendants told us that attorneys who directly represent alleged victims in civil proceedings are more appropriate parties to pursue this type of litigation. The association said this is because the prosecutor represents the public at large instead of an individual client, whereas a private attorney has an obligation to obtain a maximum recovery for the client. Comparing the process for the compensation of victims through restitution and civil proceedings, a stakeholder knowledgeable about federal restitution told us that the restitution process to compensate victims is more efficient for victims compared to civil proceedings which can last longer and result in victims incurring costs for ligation. Further, this individual stated that through the federal criminal restitution process in contrast to civil proceedings, victims receive help collecting funds through the federal courts, prisons, and probation officers during offender supervision. Other stakeholders did not consider the civil forum to be a suitable alternative for victims. One stakeholder representing victims stated that civil proceedings are inadequate for compensating victims and should not be considered. Additionally, another stakeholder representing victims also stated that victims may lack access to evidence to pursue civil litigation against an offender in cases where the conduct was not part of an offense of conviction or listed in a plea agreement. The legislative history of the MVRA also acknowledged the need for a balance, providing, as noted above, the intent that courts order full restitution but also that sentencing not become a forum for issues better suited to civil proceedings; to that end, the MVRA restricted mandatory restitution requirements to the specified set of crimes.

Impacts to federal resources. Five of 10 stakeholders we interviewed told us that impacts to judiciary and DOJ resources— including increased workloads, additional legal services, and the need for more experts—should be considered in the potential broadening of federal courts’ authority to order restitution. According to judiciary officials, broadening federal courts’ authority to order restitution could result in increased workloads by probation officers who could have to conduct more investigations to support additional restitution orders. As discussed above, federal probation officers could also be required to track and supervise more restitution payments. Officials from Federal and Community Defenders told us that if federal courts’ authority to order restitution were broadened, additional legal services would need to be provided to offenders. For example, these officials stated that larger restitution orders could require increased workloads for federal defenders to work on behalf of offenders to modify payment schedules and their level of supervision by probation officers. Likewise, an association representing defendants stated that increased collection efforts could be required by U.S. Attorneys’ Offices’ Financial Litigation Units if the number of victims eligible for restitution increased. According to DOJ officials, prosecutors could experience increased workloads as they would be identifying more victims, thereby having to spend more time investigating and determining losses. Moreover, an association representing defendants told us that additional federal experts could be needed as sentencing courts and probation officers lack the resources and expertise to examine the harms that would result from broadening restitution authority. Attention to the costs to the justice system for mandatory restitution was considered in 1995, with the legislative history of the MVRA noting the attempt to reduce costs by limiting mandatory restitution to offenses in which an identifiable victim suffered a physical injury or monetary loss.

Concerns about offenders’ reentry into society. Two of 10 stakeholders we interviewed told us that offenders’ reentry into society should be considered in the potential broadening of federal courts’ authority to order restitution. These two stakeholders, an association that represents defendants and officials from Federal and Community Defenders, told us that if the authority of the federal courts to order restitution were broadened to include non-monetary harms, offenders would be further burdened in their ability to reenter society due to excessive monetary sanctions from restitution orders. Further, these two stakeholders stated that offenders with large restitution orders face challenges obtaining employment, securing housing, and satisfying other financial obligations, which could increase their risk for recidivism and reduce their ability to pay any restitution.

Agency Comments

We provided a draft of this report for review and comment to DOJ, USSC, the Administrative Office of the U.S. Courts, and the Federal Judicial Center. The Administrative Office of the U.S. Courts provided technical comments that we incorporated as appropriate.

We are sending copies of this report to the Attorney General, the Judicial Conference of the United States, the Directors of the Administrative Office of the U.S. Courts and the Federal Judicial Center, the Staff Director of USSC, and other interested parties. In addition, the report is available at no charge on the GAO website at http://www.gao.gov.

If you and your staff have any questions about this report, please contact me at (202) 512-8777 or goodwing@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. GAO staff who made key contributions are listed in appendix III.

Appendix I: Overview of Restitution Provisions for Potential Expansion in the Justice for All Reauthorization Act of 2016

Table 2 summarizes and describes the provisions included in the Justice for All Reauthorization Act of 2016 for potential expansion of federal courts’ authority to order restitution and the factors cited by stakeholders that Congress should consider in broadening existing restitution statutes. .

Appendix II: Restitution Imposed by the Federal Courts from Fiscal Years 1996 through 2016

Table 3 and 4 summarize restitution imposed by the federal courts from fiscal years 1996 through 2016 for individual and organizational offenders.

Appendix III: GAO Contact and Staff Acknowledgments

GAO Contact

Staff Acknowledgements

In addition to the contact named above, Dawn Locke (Assistant Director); Carl Potenzieri; Janet Temko-Blinder; David Alexander; Sasan J. “Jon” Najmi; Amber Edwards; Kathleen Donovan; and Emily Hutz, made key contributions to this report.