Federal Courts: Differences Exist In Ordering Fines and Restitution
Released: 1999-05-06T00:00:00

Letter

Background

Congress divided the country into 94 federal judicial districts, and in each district there is a federal district court. The U.S. district courts are the federal trial courts—the places where cases are tried, witnesses testify, and juries serve. Congress placed each of the 94 districts in one of 12 regional circuits, and each circuit has a court of appeals. If a trial is lost in district court, the case can be appealed, and the court of appeals can review the case to see if the district judge applied the law correctly. Figure 1 depicts a map of the United States that shows the geographical boundaries of the 94 district courts and the 12 regional circuit courts (including 11 numbered circuits and the District of Columbia Circuit.) There is also a Federal Circuit whose court of appeals is based in Washington, D.C., but hears certain types of cases from all over the country. The Court of Claims is the trial court from which the appeal arises for the Federal Circuit.

Under the law, offenders in federal court may be ordered to pay a fine or restitution at sentencing. The court is to impose a fine in all cases, except where the defendant establishes that he or she is unable to pay and is not likely to become able to pay any fine, according to guidelines issued by the USSC, which interpret federal law.

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 offenders. USSC’s Guidelines state that the amount of the fine should always be sufficient to ensure that the fine, taken together with other sanctions imposed, is punitive. Except where the fine is established by specific statute, the fine should be within a range established by the USSC. The range is based on the offense level. The base offense level, which is a numerical score, is established in the Guidelines for each type of crime. Adjustments can be made to the base offense level for such things as offense characteristics, offender’s role, the victim, obstruction of justice, and acceptance of responsibility. For example, the Guideline range for fines for offense level 8 is $1,000 to $10,000; for offense level 38 the guideline range for fines is from $25,000 to $250,000. There is also a criminal history category that helps the judge determine whether an offender should be sentenced higher or lower within the Guideline range. According to the USSC Guidelines, in determining the amount of the fine, the court should consider, among other factors, the need for the combined sentence to (1) reflect the seriousness of the offense (including the harm or loss to the victim and the gain to the defendant), (2) promote respect for the law, (3) provide just punishment, and (4) afford adequate deterrence.

According to the USSC Guidelines, the court should also consider any evidence presented on the offender’s ability to pay a fine in light of the offender’s earning capacity and financial resources, as well as the burden that the fine places on the offender and his or her dependants, any restitution or civil obligations the offender is required to make, other consequences of conviction such as civil obligations, whether the offender has been previously fined for a similar offense, and any other pertinent equitable considerations. The court may waive the fine or impose a lesser fine if it has been established that the offender is not able and is not likely to become able to pay all or part of the fine, even with the use of a reasonable installment schedule. The court may also waive the fine or impose a lesser fine if the imposition of a fine would unduly burden the defendant’s dependents.

Since passage of the Victims of Crime Act of 1984 (P.L. 98-473), most fines have been used to support DOJ’s Crime Victims Fund. The fund provides, among other things, grants for victim assistance programs and compensation to victims.

Restitution is to be paid to the victim of the crime and should reflect actual losses suffered as a result of the crime. However, mandatory restitution as part of a federal criminal sentence is a relatively recent idea. Initially, the courts did not recognize restitution as a separate term of a criminal sentence. This changed with the Victim and Witness Protection Act of 1982 (P.L. 97-291), which was the first statute that broadly addressed victim restitution in general. Before enactment, imposition of an order of restitution was completely within the discretion of the court and could only be ordered as a condition of probation. Later, in 1992, with the enactment of the Child Support Recovery Act (P.L. 102-521), Congress introduced the idea of “mandatory” restitution into federal law. The act mandated that courts impose restitution on defendants convicted of willful failure to pay past due child support. In the Violence Against Women Act of 1994 (title IV of P.L. 103-322), Congress identified certain other types of crimes subject to mandatory restitution, such as sexual abuse, sexual exploitation and other abuse of children, domestic violence, and telemarketing.

On April 24, 1996, MVRA was enacted as title II of the Antiterrorism and Effective Death Penalty Act of 1996 (P.L. 104-132), reforming restitution and altering the way it is to be enforced. MVRA now requires the court to order restitution for each offender who has been convicted or has pled guilty to the following charges, without regard to the offender’s economic situation: a crime of violence (as defined in 18 U.S.C. 16); an offense against property under title 18 of the U.S. Code, including any offense committed by fraud or deceit; or an offense relating to tampering with consumer products (18 U.S.C. 1365).

According to MVRA, there must be an identifiable victim or victims who have suffered a physical injury or monetary loss. The only other exception to mandatory restitution is for an offense against property if the court finds that the number of identifiable victims is so large that it makes paying restitution impractical or determining complex issues of fact related to the cause or amount of the victims’ losses would complicate or prolong the sentencing process to a degree that the need to provide restitution to any victim is outweighed by the burden on the sentencing process.

Prior to MVRA, the law provided that the court could consider, in determining whether to impose an order of restitution, the financial resources of the offender, the financial needs of the offender and his or her dependents, and other factors the court deemed appropriate. Under MVRA, the court cannot waive restitution based on the offender’s economic circumstances. However, the court can order the offender to make nominal periodic payments if the offender’s economic circumstances do not allow for (1) the payment of any amount of a restitution order or (2) the payment of the full amount in the foreseeable future, under any reasonable schedule of payments.

According to the legislative history, an intent of MVRA was to establish one set of procedures for the issuance of restitution orders in federal criminal cases. The history cited fiscal year 1994 USSC statistics that showed that about 20 percent of federal criminal cases had restitution orders. The history also cited rates for specific types of crimes, such as about 55 percent of offenders sentenced for robbery were ordered to pay restitution. The history cited these figures as indications that more progress in ordering restitution remained to be made.

Objectives, Scope, and Methodology

The objectives of this report are to (1) identify the percentage of offenders who were ordered to pay fines or restitution in fiscal year 1997 and those who were not, (2) identify differences across judicial circuits and districts in the percent of offenders who were ordered to pay fines or restitution and those who were not, and (3) provide officials’ opinions about possible reasons for those differences. We also documented changes in the rate at which offenders were ordered to pay restitution before and after MVRA was enacted April 24, 1996.

To identify the number of offenders who were ordered to pay fines or restitution and those who were not, we used USSC data for fiscal year 1997. USSC maintains a computerized data collection system, which forms the basis for its clearinghouse of federal sentencing information. USSC requests that each probation office in each judicial district submit the following documents on every defendant sentenced under the guidelines: indictments, presentence report, report on the sentencing hearing, written plea agreement, and judgment of conviction.

Data from these documents are extracted and coded for input into USSC’s databases. We did not independently verify the accuracy of the USSC data. However, USSC takes several steps to insure the reliability and completeness of the data system.

To identify the differences across the judicial circuits and districts in the percentage of offenders who are ordered to pay fines or restitution and those who are not, we used USSC’s data for fiscal year 1997 to identify the percentage of offenders who received a fine or restitution by court district. Because we found that type of offense was strongly related to whether fines or restitution was ordered, we also analyzed the differences among judicial circuits and districts in fines and restitution ordered by selected types of offenses. To determine the percentage of offenders ordered to pay fines, we selected larceny, fraud, and drug trafficking crimes because of the large number of offenders sentenced under USSC guidelines in federal courts for these crimes. To determine the percentage of offenders ordered to pay restitution, we selected robbery, larceny, and fraud crimes because (1) there were a large number of offenders sentenced in federal courts and (2) these crimes involve an act upon another person, so we believed there was the reasonable expectation of an identifiable victim.

To identify possible reasons for sentencing differences among judicial circuits and districts, we analyzed the overall percent of fines and restitution ordered by circuits and districts and for the specific types of crimes we chose. In performing our analysis, we first considered all federal offenders and how the likelihood of being ordered to pay fines or restitution was affected by selected demographic characteristics of the offenders (sex, race, citizenship, education, and number of dependents); the type of offense they committed (whether it involved property, drugs, firearms, fraud, immigration, a violent or other offense); characteristics of the offender’s sentence (whether it occurred before or after MVRA was enacted, whether the offender was sentenced to prison, probation, or an alternative sentence imposed, and whether there was more than a single count of conviction); and the circuit and district in which the sentencing occurred.

We found that a number of factors were strongly associated with whether fines or restitution were ordered and that the type of offense was one of the most important. Therefore, we conducted a series of multivariate statistical analyses for specific types of offenses to estimate the effects of the other factors on fine and restitution orders, independent of one another. We used logistic regression techniques to estimate, simultaneously, the effects of these different factors on the odds of an offender being ordered to pay restitution among larceny, robbery, and fraud offenses and then to estimate the effects of these factors on the odds of an offender being ordered to pay fines among larceny, drug trafficking, and fraud offenses. In one series of regression models, we employed circuit as one of our independent variables to determine how much variation across circuits in the odds on ordering fines and restitution persisted for these types of offenders after other factors were controlled. In a second series of regressions, we restricted our attention to offenders in the 10 largest districts, based on the number of offenders sentenced during fiscal year 1997 for each of the 4 types of offenses selected, to get a sense of the extent of variation across districts. (It was not always the same 10 districts for each type of crime.) There were not sufficient numbers of offenders ordered to pay fines for robbery offenses or restitution for drug trafficking offenses in the districts for us, in our opinion, to reliably perform the multivariate statistical analyses in those cases. We also believed it would be too time consuming to perform the multivariate statistical analyses for offenders sentenced for all types of federal offenses separately in all 94 districts.

We interviewed officials from the DOJ’s Executive Office of the U.S. Attorneys, the Administrative Offices of the U.S. Courts (AOUSC), USSC, and selected Federal District Courts to obtain their opinions of why the differences existed in the percentage of offenders ordered to pay fines and restitution and their views about the effect of mandatory victim restitution. We limited our discussions to district courts in the largest judicial districts, based on number of offenders sentenced for each of the four types of offenses. We selected these districts first because they were among the districts that met the criteria for our multivariate statistical analyses. We then narrowed our selection to seven districts in two parts of the country where at least one district was adjacent to another and there appeared to be variation in the percent of offenders ordered to pay fines or restitution. Those seven districts were the Eastern District of Pennsylvania, the District of New Jersey, the Southern District of New York, the Eastern District of New York, the Northern District of California, the Central District of California, and the Southern District of California. At each district, we interviewed the Chief Judge, the U.S. Attorney, and the Chief Probation Officer or a representative selected by that official. However, we did not review court case files at each district. A review of court case files would have been time consuming and might not have provided the reason why a fine or restitution was or was not ordered in a particular case.

We did our work from August 1998 through January 1999 in accordance with generally accepted government auditing standards. We requested comments from DOJ, USSC, and AOUSC. We obtained written comments from DOJ and USSC. AOUSC provided technical comments. These comments are summarized at the end of this letter and are contained in appendixes III and IV. All three agencies provided technical corrections and suggestions.

Numbers and Percent of Federal Offenders Ordered to Pay Fines or Restitution

According to our analysis of USSC data, of the approximately 48,000 federal offenders sentenced in fiscal year 1997 under USSC guidelines, about 9,000 (19 percent) were ordered to pay fines and 9,600 (20 percent) were ordered to pay restitution. 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.

Percent of Federal Offenders Ordered to Pay Fines or Restitution by Judicial Circuit or District

The percent of federal offenders sentenced that were ordered to pay fines and restitution varied substantially across the 12 federal circuits. Figure 2 shows the percent of offenders ordered to pay fines ranged from 7 percent in the D.C. Circuit to 42 percent in the Seventh Circuit, which includes Illinois, Indiana, and Wisconsin. Figure 3 shows the percent of offenders who were ordered to pay restitution ranged from 15 percent in the Fifth Circuit, which includes Texas, Louisiana, and Mississippi, to 32 percent in the Seventh Circuit. Table I.2 in appendix I shows the percent of offenders ordered to pay fines or restitution, by judicial circuit.

The 94 federal judicial districts also differed greatly in the percent of offenders ordered to pay fines, ranging from a low of 1 percent of the offenders sentenced in the Eastern District of Oklahoma to a high of 84 percent in the Southern District of Illinois. The rate at which offenders were ordered to pay restitution also varied from 3 percent in the Southern District of California to 49 percent in the Western District of Wisconsin. The rate at which offenders were ordered to pay fines or restitution might be three times or more greater in one district than in an adjacent district. According to court officials, there should be less variation in the types of offenses committed among adjacent districts than there might be among districts located in different parts of the country. For example, while 45 percent of the offenders in the district of New Jersey were ordered to pay fines, 12 percent of the offenders in the Eastern District of New York, which includes Staten Island and Long Island, were ordered to pay. Similarly, while 22 percent of the offenders in the District of New Jersey were ordered to pay restitution, 9 percent of the offenders in the Eastern District of New York were ordered to pay. Table I.3 in appendix 1 shows the variation by district in offenders ordered to pay fines or restitution for all 94 judicial districts.

Differences Among the Judicial Circuits and Districts in Ordering Fines or Restitution

While many factors influence 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. Our initial statistical analysis of all 12 judicial circuits and 94 districts showed major variation among the judicial circuits and districts in the likelihood of an offender being ordered to pay a fine or restitution. However, there was also a strong association between the type of offense committed and the likelihood of an offender being ordered to pay a fine or restitution. We then performed a multivariate statistical analysis for offenders sentenced for four types of offenses— robbery, larceny, fraud, and drug trafficking—and controlled for such things, among others, as offender characteristics, type of crime committed, length of sentence, and type of sentence imposed such as prison, probation, or an alternative. We selected these four types of offenses because they were well-represented in the number of offenders sentenced in the districts. We performed our multivariate statistical analysis for the 10 largest districts in number of offenders sentenced under the Guidelines for each of the 4 types of offenses during fiscal year 1997.

Our multivariate statistical analyses for the four types of offenses showed that the major variation among judicial circuits and districts, although less, persisted and the likelihood of an offender being ordered to pay fines or restitution for the same type of offense could still be many times greater in one judicial circuit or district than in another. We asked court officials and prosecutors in seven districts for possible explanations of why these differences might exist. We received some reasons related both to the nature of the crimes and the types of offenders sentenced in particular districts and to the culture of the courts and the prosecutor’s office in the districts such as how well court officials and prosecutors work together to identify victims and their losses.

Initially, we identified a number of potential reasons for the differences between the judicial circuits and districts in the likelihood of offenders being ordered to pay fines or restitution. Judicial circuits and districts varied substantially in the types of offenders who were sentenced. For example, the percentages of offenders sentenced for drug trafficking, robbery, and fraud varied by judicial circuit and district. Judicial circuits and districts also varied according to the demographic characteristics of offenders who were sentenced, such as the number of women, minorities, or noncitizens. There were also differences in the characteristics of offenders’ sentences, such as whether they were sentenced to prison or probation and the length of the sentence or amount of time the offender would be in custody.

Our preliminary analysis showed that many of these characteristics affected whether offenders were ordered to pay fines or restitution. For example, the type of offense had a very pronounced effect. While 6 percent of immigration offenders were ordered to pay a fine, almost one-third of property offenders were likewise ordered. Similarly, while 1 percent of drug trafficking offenders were ordered to pay restitution, almost two- thirds of fraud offenders were so ordered. Similar disparities in the likelihood of an offender being ordered to pay fines or restitution existed among those sentenced for such offenses as drug trafficking, fraud, and violence. Figures 4 and 5 show the percentage of offenders who were ordered to pay fines or restitution, by type of offense.

Other factors related to the offender and the type of sentence also produced variations in the likelihood of an offender being ordered to pay a fine or restitution in our initial statistical analysis for all 12 judicial circuits and 94 judicial districts. For example, overall, females were more likely than males to be ordered to pay restitution and blacks less likely than whites. Also, overall, citizens were six times more likely to have restitution orders than noncitizens. Similar race differences existed in the likelihood of offenders being ordered to pay fines. Additionally, offenders who were sentenced to probation were much more likely to be ordered to pay a fine or restitution than those sent to prison. Better-educated offenders also were more likely to be ordered to pay a fine or restitution. Our comparison for these factors is presented in detail in table I.1 of appendix 1.

Given the effect of these characteristics, we did multivariate statistical analyses that reestimated the differences in fines and restitution across circuits and districts. In these analyses, we controlled for those characteristics. These analyses took into account differences in offenders’ characteristics across these judicial locations and the effects of these characteristics on fine and restitution orders. We looked separately at fine orders among larceny, drug, and fraud offenders and separately at restitution orders for larceny, robbery, and fraud offenders. The statistical analyses are presented in full in appendix I. Figures 6 through 11 show the differences among the 10 largest districts in number of offenders sentenced during fiscal year 1997 for fraud, larceny, robbery, and drug trafficking.

Even after controlling for the characteristics mentioned above, we found that pronounced differences existed across judicial circuits and districts for fine and restitution orders. For example, we found that the likelihood of being ordered to pay restitution in some districts among offenders convicted of robbery was five or more times as high as in other districts. Drug trafficking offenders were 10 or more times as likely to be fined in some districts as in others. We found similar results for the other types of offenders and for both fines and restitution, with offenders in some districts many more times as likely to be ordered to pay as in others.

Court officials and prosecutors we interviewed offered several possible explanations why restitution might not have been ordered in all cases. Some officials noted that there is rarely an identifiable victim in drug offenses, making an order to pay restitution unlikely. These officials also identified bank robbers as being among the poorest of offenders who usually lack the ability to pay a fine, especially if restitution to the bank is ordered. Offenders who commit immigration offenses most likely are aliens who can be deported after being sentenced and serving any time that may be ordered; collection of a fine might be unlikely after deportation.

While these explanations offered some reasons why fines or restitution might not be ordered in all cases, they do not explain why—when controlling for offender characteristics, length of sentence, and type of sentence such as probation, prison, or an alternative—offenders have a far greater likelihood of being ordered to pay a fine or restitution for the same type of offense in one district than in another. We asked court officials and prosecutors in seven of these districts what some possible explanations might be for differences between the districts. These 7 districts were among the 10 largest in number of offenders sentenced for each of the 4 types of offenses. The 10 largest districts were not always the same 10 districts for each of the 4 types of offenses. with each other in identifying victims and the amount of loss for restitution.

Some officials who had worked in more than one district explained that the culture was very different among the districts in which they had worked. These officials explained that, when trying cases, the diligence with which prosecutors identified victims and their losses was greater in one district than in the other. In one district, officials said there was a greater reluctance to pursue restitution as part of the sentence because there was a strong belief among prosecutors that the offenders would not, in most cases, be able to pay it; whereas in another district, every opportunity was considered by the prosecutors in the prospect of an offender paying a fine or restitution as part of the sentence. Some criminal prosecutors noted that in the district to which they had transferred, civil attorneys sat in the same area as criminal prosecutors; and the civil attorneys, who are more focused on monetary issues, assisted criminal prosecutors in developing the financial aspects, such as restitution, in criminal cases.

The Effect of MVRA on Restitution Orders

MVRA requires the court to order full restitution in certain cases, including most federal offenses involving a crime of violence or a crime against property. Prior to MVRA, the court could waive restitution, in most cases, based on the offender’s ability to pay. 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.

Our statistical analysis showed that the percentage of offenders ordered to pay restitution, overall, declined after MVRA went into effect, while the results of the multivariate statistical analysis for the four types of offenses were mixed on whether the percentage of offenders changed after MVRA became effective. Overall, for offenders sentenced during fiscal year 1997, 26 percent of offenders who were sentenced under the USSC Guidelines for crimes committed before MVRA went into effect were ordered to pay restitution, compared with 12 percent who were sentenced for crimes committed after MVRA went into effect (See table I.1 in app. I.) Our multivariate statistical analyses showed inconsistent results across types of offenses. (See table I.5 in app. I.) For all districts, offenders who committed fraud offenses after MVRA’s effective date were about 80 percent as likely to be ordered to pay restitution as those who committed offenses before restitution became mandatory. Larceny offenders who were sentenced for crimes committed after MVRA went into effect were about half as likely to be ordered to pay restitution as those sentenced for crimes committed before MVRA went into effect. Robbers who were sentenced for crimes committed after MVRA went into effect were about one-third more likely to be ordered to pay restitution than robbers sentenced for crimes committed before MVRA went into effect.

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 is 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. Most prosecutors, however, commented that they did not remove an offender’s responsibility for restitution when drafting plea agreements. The judges we interviewed, in general, commented that they were implementing the law and did not have constitutional questions with MVRA.

Although we selected larceny, fraud, and robbery because of the likelihood of a victim being due restitution, a substantial percentage of offenders— about one- to two-thirds of offenders sentenced—were still not ordered to pay restitution, even if their crimes were committed after MVRA was passed. 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, and the offender was arrested prior to obtaining any 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.

In response to our questions, Chief Probation Officers in the Northern District of California, which includes San Francisco, and the Central District of California, which includes Los Angeles, provided information from local databases on bank robbery cases where restitution had not been ordered. These databases were different from the USSC database, and the information covered different time periods. Information provided by the Chief Probation Officer in the Northern District of California showed that restitution was ordered in all bank robbery cases where there was monetary loss. However, restitution was not ordered in bank robbery cases where there was no loss or where the stolen money was recovered. In the Central District of California, the primary reason given when restitution had not been ordered as part of the sentence was, as in the Northern District, that there was no loss or that the stolen money had been recovered. We noted that, in some cases, probation officers recommended restitution, which would have been based on an actual loss, as part of the sentence; but the judge did not follow the recommendation and did not order restitution as part of the sentence. In other cases, the probation officer did not recommend restitution, and the judge did not order it. According to the Chief Probation Officer, the length of the sentences— over 80 years in prison in 2 of the cases—might have been a factor considered by the probation officer in not recommending to the judge that restitution be part of the sentence.

Conclusions

Although offender characteristics, type of offense, and the nature of the sentence all played a role, the judicial circuit or district where an offender was sentenced was a major factor in determining the likelihood of an offender being ordered to pay a fine or restitution during fiscal year 1997. This major 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 analysis 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. 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.

Statistics for fiscal year 1997 are mixed on whether offenders were more likely to be ordered to pay restitution after MVRA, which was intended to eliminate much of the discretion judges previously had in waiving restitution for certain types of crime. Substantial percentages of offenders sentenced for crimes such as fraud, robbery, and larceny—which, by their nature, indicate a need for restitution to a victim—are not being sentenced to pay restitution by the courts. However, it may be too early to see the full impact of the results of the legislation; and there also may be mitigating circumstances, such as recovery of stolen money, in explaining why restitution was not ordered in a particular case.

Agency Comments and Our Evaluation

We requested comments from DOJ, USSC, and AOUSC. DOJ and USSC provided written comments on a draft of this report (see apps. III and IV). AOUSC provided technical comments. All three agencies provided technical corrections and suggestions.

DOJ generally agreed with the findings in the draft and advised us of the steps that have been taken to help ensure that MVRA is properly implemented. These steps include memoranda providing guidance on MVRA and additional training efforts. DOJ’s comments recognize that the imposition of restitution is critical to their law enforcement efforts and that, while a number of steps have been taken, more remains to be done to increase the number of cases in which restitution is imposed.

USSC raised several issues. First, USSC noted that training efforts are planned or under way within the offices of the federal courts to provide guidance and training on the correct application of MVRA. Second, USSC also raised a general concern that the scope and conclusions of the report rely perhaps too heavily on use of the 1997 data. Although USSC acknowledges that 1997 data are the only data currently available to study MVRA, they believe that replicating the study using future data might mitigate the idiosyncrasies in any given year’s caseload. While the scope suggested by USSC might be beneficial, USSC also does not provide any evidence that expanding the scope would change our overall conclusion that the judicial district or circuit where an offender was sentenced was a major factor in determining the likelihood of an offender being ordered to pay a fine or restitution. We incorporated other suggestions by USSC as appropriate.

We have incorporated technical comments and suggestions from the three agencies in the final report, as appropriate.

We are sending copies of this report to Patrick J. Leahy, the Ranking Minority Member of your committee, and Robert C. Scott, the Ranking Minority Member of your subcommittee; Charles E. Grassley, the Chairman, and Robert G. Torricelli, the Ranking Minority Member, of the Subcommittee on Administrative Oversight and the Courts, Senate Committee on the Judiciary; Henry J. Hyde, the Chairman, and John Conyers, Jr., the Ranking Minority Member, of the House Committee on the Judiciary; Leonidas Ralph Mecham, Director, AOUSC; Timothy B. McGrath, Interim Staff Director, U.S. Sentencing Commission; the Honorable Janet Reno, Attorney General; and other interested parties. Copies will be made available to others upon request.

Major contributors to this report are listed in appendix V. If you have any questions about this report, please call me on (202) 512-8777.

Statistical Analysis of Offenders Ordered to Pay Fines and Restitution, Fiscal Year 1997

To investigate factors affecting the likelihood of convicted federal offenders being ordered to pay fines or restitution as part of their sentence, we used data provided by the United States Sentencing Commission (USSC) for fiscal year 1997. For our review, we considered (1) selected demographic characteristics of the offenders (i.e., sex, race, citizenship, education, and number of dependents); (2) the type of offense they committed (i.e., whether it involved a property, drug, firearms, fraud, immigration, violent, or other offense); and (3) other characteristics of their offense (i.e., whether it occurred before or after the Mandatory Victims Restitution Act (MVRA) went into effect) and sentencing (i.e., whether and for how long they were sentenced to prison or probation, whether there was an alternative sentence imposed, and whether there was more than a single count of conviction). We also considered the circuit or district in which the sentencing occurred.

Over 48,000 federal offenders were sentenced under USSC Guidelines in fiscal year 1997. About 19 percent of these offenders were ordered to pay fines, and about 20 percent were ordered to pay restitution. Few offenders were ordered to pay both restitution and a fine (about 2 percent). Table I.1 provides descriptive information on the percentages of offenders ordered to pay fines and restitution across categories of offenders, offense characteristics, and other components of their sentences. Regarding offender characteristics, females were more likely to be ordered to pay restitution than males, though there was little difference between those two groups in the percentages ordered to pay fines. Hispanics and noncitizens--two variables that were strongly associated--were less likely to be ordered to pay fines and restitution than other offenders. The number of dependents, education, and having a fine waived because of inability to pay were three proxies we used for determining offenders’ ability to pay and that were available in the USSC data. While better educated offenders were more likely to be ordered to pay fines and restitution, having dependents did not have much of an effect on whether an offender was ordered to pay a fine or restitution; and having had a fine waived because of inability to pay had little effect on whether restitution was ordered.

As noted in the letter section of this report, when we considered the various factors that affected the likelihood of whether the offender was ordered to pay fines or restitution, one of the most important was the type of offense committed. While 6 percent of immigration offenders were ordered to pay a fine, fines were ordered for 12 percent of violent offenders; 17 percent of drug, firearm, and fraud offenders; and 32 percent of property offenders. Similarly, while less than 1 percent of drug or immigration offenders were ordered to pay restitution, 50 percent of the violent and property offenders, and 63 percent of the fraud offenders, were ordered to pay restitution. Offenders who committed offenses after MVRA went into effect were less likely, overall, to be ordered to pay fines or restitution than offenders who committed offenses prior to MVRA. Offenders with multiple counts of conviction were more likely than those with a single count of conviction to be ordered to pay restitution; and those who received probation rather than prison sentences, and who received an alternative sentence instead of or in addition to their prison or probation sentence were more likely to be ordered to pay fines or restitution.

The circuit where an offender was sentenced was strongly associated with whether the sentence included an order to pay a fine or restitution. Tables I.2 and I.3 show the percentages of offenders ordered to pay fines or restitution across the 12 circuits and 94 judicial districts. Table I.2 shows that the percentages of offenders ordered to pay fines ranged from 7 percent to 42 percent, while the percentages of offenders ordered to pay restitution across the 12 circuits ranged from 15 percent to 32 percent.

Table I.3 shows that across the 94 districts, the percentages of offenders ordered to pay fines and restitution ranged from 1 percent to 84 percent, and 3 percent to 49 percent, respectively.

Because of the pronounced differences across offense types in the likelihood of an offender being ordered to pay fines and restitution and the strong associations between offense types and many of the other factors we reviewed, including the circuit or district in which offenders were sentenced, we conducted a series of multivariate analyses for specific types of offenses to estimate the effects of the different factors net of one another. We used logistic regression techniques to estimate, simultaneously, the effects of these different factors on the odds of an offender being ordered to pay fines among larceny, drug, and fraud offenses and then to estimate the effects of these factors on the odds of an offender being ordered to pay restitution among larceny, robbery, and fraud offenses. In one series of regression models, we employed circuit as one of our independent variables to determine how much variation across circuits, in the odds on ordering fines and restitution, persisted for these types of offenses after other factors were controlled. In a second series of regressions involving these same 4 offense types, we restricted our analysis to offenders in the 10 districts that sentenced the largest numbers of offenders of each type to get a sense of the extent of the variation across districts. We selected these offenses because they represented sizable categories of offenders and--in the case of robbery (a subset of violent offenders), larceny (a subset of property offenders), and fraud offenders--because regulations imply that restitution should be ordered for these types of crimes. For the different types of offenses we considered, we first estimated how the odds on a fine or restitution being ordered varied across circuits or across the larger districts before controlling for other factors. We then controlled for the other factors mentioned above (i.e., offender demographic characteristics, offender’s ability to pay, and other characteristics of the offense and of the offender’s sentence).

In each of the following tables, the coefficients shown are odds ratios, which indicate how the odds on being ordered to pay fines or restitution vary across the districts or circuits used in our analyses and how they varied across the categories or levels of the other factors we considered. The odds on being ordered to pay a fine or restitution for a particular category of offender were obtained by simply dividing the number of offenders who were ordered to pay a fine or restitution by the number of offenders who were not ordered to pay. For example, if in one circuit 1,000 offenders were ordered to pay restitution while 100 were not, the odds on being ordered to pay restitution in that circuit equal 1,000/100 = 10.0. If in a second circuit 4,000 offenders were ordered to pay restitution while 1,000 were not, the odds on paying restitution in that circuit are 4.0. The odds ratio obtained by dividing the former odds by the latter (i.e., 10.0/4.0 = 2.5) provides an estimate of the differences across the two circuits and can be interpreted as indicating that the odds on being ordered to pay restitution are 2.5 times greater in one circuit than in the other.

In our analyses, we chose the circuit or district with the lowest odds on offenders being ordered to pay a fine or restitution, before other factors were controlled, and calculated odds ratios, which indicated how much higher the odds were in the other circuits or districts relative to that one. We call the circuit or district with the lowest odds the referent circuit or district. Hence, all of the odds ratios shown for the first model we considered for each type of offender in the tables which follow are greater than 1.0. It should be noted, however, that in many instances the circuit or district that had the lowest odds on ordering offenders to pay fines and restitution, before other factors are controlled, was not the circuit that had the lowest odds after other factors were controlled. This is why some of the odds ratios for circuits or districts for the second model in the following tables, which controls for the effects of these other factors, are less than 1.0. An odds ratio of 0.5 indicates that, after other factors are controlled, the odds on being ordered to pay fines or restitution in the particular district that the odds ratio corresponds to are only half as great as in the referent district to which it is compared.

Regarding the other variables used in our analyses, it should be recognized that the odds ratios for Blacks, Hispanics, and Others reflect how similar or different those groups are in terms of their odds on being ordered to pay fines or restitution from the referent category, which is Whites. The three odds ratios for education (i.e., high school, more than high school, and missing) indicate how different offenders in those categories are from offenders with less than a high school education. The other offender characteristics (i.e., sex, citizenship, whether fines were waived because of the offenders inability to pay, and whether the offender had any dependents) were each divided into two categories; and the odds ratios for them reflect how females, noncitizens, and offenders whose fines were waived because of inability to pay or had dependents differed from males, citizens, offenders whose fines were not waived, or who had no dependents, respectively. Among the sentence characteristics, the Prison and Alternative Sentence variables indicate how different offenders sentenced to prison, or given an alternative sentence, were from offenders not sentenced to prison or not given an alternative sentence. Similarly, the variables labeled “more than one count,” “after MVRA passed,” and (in the case of fines) “restitution ordered” reflect (1) how different offenders who had multiple counts of conviction differed from offenders with a single count; (2) how much those whose offenses occurred after MVRA differed from those whose offenses occurred before; and (3) how much offenders who were ordered to pay restitution differed from those who were not, in terms of their odds on being ordered to pay fines. The length of sentence variable was measured in years and entered into our regression analyses as a linear term. We used an interaction term in our analyses to allow its effect to vary on the odds of an offender being ordered to pay a fine or restitution, depending on whether the sentence involved time in prison or probation.

Table I.4 shows the likelihood of fines being ordered for larceny, drug, and fraud offenders, before (model 1) and after (model 2) the other factors that we thought would affect fines were controlled. For both larceny and drug offenses, there were significant similar effects for the characteristics of sex, race and education, and significant effects for other factors as well on an offender’s likelihood of having to pay a fine. Among larcenists and drug traffickers, Blacks and Hispanics were less likely to be ordered to pay fines than Whites, and females were less likely than males, while better educated offenders were more likely than offenders with less than a high school education to be so ordered. Even after controlling for these effects, however, the differences across circuits remained pronounced. However, in the case of imposing fines for fraud, the differences across circuits were not as pronounced.

High school More than high school Missing Fine waived One or more dependents Sentence characteristics Prison (vs.0.11probation) Alternative sentence0.74 Prison/alternative1.43 Interaction More than one count0.92 After MVRA1.43Restitution ordered0.27Length of sentence0.62Prison/sentence1.44interaction The referent categories to which the other circuits were compared.

The results were similar when we reviewed restitution orders. Table I.5 shows how the odds on restitution being ordered for larceny, robbery, and fraud offenders varied across circuits. Considering the variation across circuits in which larceny offenders were sentenced, table I.5 shows that offenders sentenced for larceny in the 10th circuit were 2.5 times as likely to be ordered to pay restitution than those sentenced in the 11th circuit. When controlling for the other factors describing larceny offenders and their crime, there were also differences. Larceny offenders who were not citizens were about half as likely to be ordered to pay restitution as those who were citizens. Offenders sentenced to prison or convicted of more than one charge were also more likely to be ordered to pay restitution. Offenders who had fines waived because of inability to pay were twice as likely to be ordered to pay restitution. Even when the effects of these other factors were included in model 2, there remained sizable and significant variation in the likelihood of being ordered to pay restitution, depending on the circuit in which the offender was sentenced.

The variation across circuits, before and after controls, was even more pronounced when looking at the odds on ordering restitution for robbery offenders. Minority offenders were less likely to be ordered to pay restitution than white offenders, and those sentenced for crimes committed after MVRA went into effect and those convicted of more than one offense were about 1.5 times as likely to be ordered to pay restitution. However, when holding crime and offender characteristics constant, offenders sentenced in many circuits were 10 times or more as likely to be ordered to pay restitution as those tried in the D.C. circuit.

For fraud offenses too, demographic, crime, and offense characteristics had pronounced effects on the likelihood of imposing restitution. For example, noncitizen offenders were less likely to be ordered to pay restitution, while female offenders were more likely to be ordered to pay restitution. Those offenders who received prison sentences over probation sentences were more than eight times as likely to be ordered to pay restitution. Again, even after controlling for the differing effects of demographics and offense characteristics, the odds of being ordered to pay restitution varied significantly, according to the circuit in which the offender was sentenced.

High school More than high school Missing Fine waived One or more dependents Sentence characteristics Prison (vs. probation) Alternative sentence Prison/alternative interaction More than one count After MVRA Length of sentence Prison/sentence interaction Odds ratios that are significant at the .05 level of statistical analysis.

The referent categories to which the other circuits were compared.

Additional analyses of the four types of offenses undertaken that involved looking at the 10 largest districts exhibited similar pronounced variation across districts that was not accounted for by the characteristics of offenders and other elements of their sentences. Given that the sample size was reduced when only the 10 largest districts were considered, standard errors associated with the odds ratios estimating the effects of the different factors we considered were often larger, including the effect of which district an offender was sentenced. Nonetheless, some districts were much more likely than others to order offenders to pay restitution or fines for some types of offenses, after other factors were controlled.

Tables I.6 and I.7 show how fine and restitution orders varied across the 10 districts in which the largest numbers of larceny and fraud offenders, respectively, were sentenced. Table I.8 shows how fine orders varied across the 10 districts in which the largest numbers of drug offenders were sentenced, and table I.9 shows how restitution orders varied across the 10 districts in which the largest numbers of robbery offenders were sentenced.

The referent categories to which the other districts were compared.

Table I.7: Odds Ratios Indicating the Effects of Judicial Districts and Other Factors on Fine and Restitution Orders for Fraud Offenders

The referent categories to which the other districts were compared.

District Arizona California-South Florida-Middle Florida-South New York-East New York-South South Carolina Texas-South Texas-West Virginia-East Offender characteristics Race High school More than high school Missing Citizenship Fine waived One or more dependents Sentence characteristics Prison (vs. probation) Alternative sentence Prison/alternative interaction More than one count After MVRA passed Restitution ordered Length of sentence Prison/sentence interaction Odds ratios that are significant at the .05 level of statistical analysis.

The referent categories to which the other districts were compared.

The referent categories to which the other districts were compared.

One of the surprising findings in our analyses, in addition to the considerable variation in the likelihood of an offender being ordered to pay restitution and fines across circuits and districts, was the inconsistent difference across the types of offenses we considered in the effect of whether their crimes were committed before or after the MVRA went into effect. Among larceny and fraud offenders, those who committed offenses after MVRA went into effect were less likely to be ordered to pay restitution than those whose offenses occurred before MVRA, while among robbers, restitution was more likely to be ordered after MVRA than before. Since we were interested in knowing whether MVRA had affected the extent of variation in restitution across circuits and districts, we reanalyzed the data using samples of pre-MVRA cases in one set of analyses and post MVRA cases in another. As table I.10 shows, MVRA did not diminish the variation across circuits (the same is true across the largest districts) in the likelihood of an offender being ordered to pay restitution, nor did it seem to consistently alter the effects of any of the offense characteristics across the three types of offenses we reviewed.

The referent categories to which the other districts were compared.

Offenders Ordered to Pay Fines or Restitution for Each Circuit and District, Fiscal Year 1997

The following tables provide the numbers of larceny, robbery, drug and fraud offenders who were ordered to pay fines and restitution, in each of the judicial circuits and districts in fiscal year 1997. The numbers of offenders of certain types are quite small in many districts, so readers should be cautious about making percentage comparisons across small and large districts. Districts are arrayed within circuits in these tables, and it can be readily seen that substantial variation exists in the likelihood of being ordered to pay fines and restitution across the various districts within different circuits. Additional statistical work, not detailed here, revealed that for these specific offenses only between 13 percent and 37 percent of the variation in the likelihood of being ordered to pay fines or restitution resulted from variation across circuits, rather than across districts within circuits.

Comments From the United States Sentencing Commission

Comments From the Department of Justice

Major Contributors to This Report

General Government Division, Washington, D.C.

Office of the General Counsel, Washington, D.C.

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