Federal Criminal Restitution: Most Debt Is Outstanding and Oversight of Collections Could Be Improved
Released: 2018-02-02T00:00:00

Letter

Background

Restitution Roles and Responsibilities

DOJ and its components, as well as the judiciary, play important roles in requesting and collecting restitution.

DOJ and select components: Prosecutors in DOJ’s Criminal Division and the Criminal Divisions of the 94 USAOs are responsible for overseeing criminal matters, including identifying and notifying victims, determining their losses as part of a case investigation, prosecuting cases and negotiating the terms of plea agreements, of which restitution may be a part. Within DOJ’s Criminal Division, the Money Laundering and Asset Recovery Section manages DOJ’s Asset Forfeiture Program. As previously stated, FLUs within each USAO undertake activities to collect restitution from offenders in their district. Additionally, all USAOs have asset forfeiture staff responsible for forfeiting property seized by law enforcement agencies because the property was used in criminal activities or purchased with the proceeds of criminal activities. According to EOUSA guidance, coordination between the FLU and Asset Forfeiture units is highly encouraged to use forfeited assets as a means to collect on unpaid restitution debts.

DOJ requires each USAO to have its own policies and procedures related to debt collection efforts but allows them discretion in developing these policies and procedures to ensure that they are appropriate for local conditions. DOJ also requires USAOs to have policies and procedures to make early, effective, and coordinated asset investigations and recovery a routine part of every case involving victims but allows USAOs to specify these policies and procedures.

DOJ’s EOUSA provides USAOs with management assistance, guidance, training, and administrative support. Among other activities, EOUSA provides management assistance to USAOs by administering internal evaluations for each USAO, which are intended to provide on-site management support for that office. Further, EOUSA provides guidance to enhance offices’ efforts to request and collect restitution.

Judiciary: Within the judiciary, the 94 federal district courts order restitution, receipt restitution payments, and disburse restitution to victims. Within the federal district where the offender was convicted, a probation officer prepares the presentence investigation report (PSR) for the court, which includes information on the victim’s losses and an offender’s financial information. Probation officers may obtain this information from DOJ, which has the statutory responsibility for the enforcement and collection of criminal debt. The court uses the PSR, among other things, to determine whether to order restitution. If an offender is released to the community by the court and placed on supervision, probation officers are responsible for ensuring the offender abides by the terms of release, including paying any restitution owed to victims. The Clerk of each District Court is responsible for the receipt of restitution from offenders and for disbursing payments to victims.

The Judicial Conference is the national policy-making body for the federal courts. The Conference operates through a network of committees created to address and advise courts on a wide variety of subjects such as information technology, personnel, probation and pretrial services, space and facilities, security, judicial salaries and benefits, budget, defender services, court administration, and rules of practice and procedure. The Judicial Conference has taken policy positions on restitution-related issues and has supported legislative proposals to improve the restitution process.

AOUSC is the agency within the judiciary that provides a broad range of legislative, legal, financial, technology, management, administrative, and program support services to federal courts. AOUSC is responsible for carrying out Judicial Conference policies and a primary responsibility of AOUSC is to provide staff support and counsel to the Judicial Conference and its committees.

USSC is an independent agency within the judiciary which, among other activities, establishes and promulgates detailed sentencing guidelines that judges are to consider in sentencing offenders convicted of federal crimes, including guidelines on when and how to order restitution. Additionally, each district court is required to submit to USSC a report of each offender’s sentence that includes, among other information, details on the offenses for which the offender was convicted; the sentence imposed on the offender; and if the judge departed from the sentencing guidelines, information on reasons why. USSC maintains a database containing sentencing data on federal offenders convicted of felonies or serious misdemeanors, analyzes it and publishes these data on an annual basis. USSC is also statutorily required to annually report to Congress its analysis of sentencing-related documents, including an accounting of districts USSC believes have not submitted appropriate information to the commission, among other things.

Restitution Overview

During the course of a federal criminal investigation, federal prosecutors identify and notify victims, as well as determine their losses in conjunction with the federal agents investigating the case. If a defendant pleads guilty or is found guilty at trial, the prosecutor has the burden of proving the victims’ losses in court. To facilitate this, a Victim-Witness coordinator within the USAO responsible for the case provides victims the opportunity to explain their losses in detail, usually through a Victim Impact Statement. This information is then to be provided to a federal probation officer who uses it to begin a PSR.

To develop the PSR, probation officers use information provided by the USAO and may contact victims and verify the loss amounts. Additionally, probation officers will investigate an offender’s economic circumstances— such as if the offender has a job, any assets or any dependents. If a judge determines that restitution is to be ordered, the judge must order restitution for the full amount of a victim’s losses for offenses without consideration of the economic circumstances of the defendant. Judges may decline to order restitution in certain instances, for example, where restitution is discretionary, or in certain cases where the number of identifiable victims makes restitution impracticable or the complexity of calculating restitution would unduly prolong the sentencing process. If the court does not order restitution, or orders only partial restitution, the judge must provide the reason, and judges usually do so in a written Statement of Reasons document. Figure 1 provides an overview of the federal restitution process.

Upon imposition of a restitution debt by the court, FLU staff use two mechanisms to determine the collectability of the debt and what collection actions to take. First, FLU staff classify the debt into one of four categories to determine the extent to which the FLU will pursue enforcement actions to collect upon the debt. FLUs classify debts from a Priority Code 1 debt (indicating that FLUs will make collection of this debt the highest priority) to a Priority Code 4 debt (indicating that FLUs will make collection of this debt the lowest priority). Second, FLUs may suspend collection action on criminal debts, regardless of their categorization, under certain circumstances if they determine the debts are uncollectible. FLU staff may also determine that debts are permanently uncollectible and categorize them as Priority Code 4 debts.

If a debtor does not provide payment, FLU staff then use various enforcement actions to collect the restitution debt. These can include, among other actions, filing liens against an offender’s property, coordinating with asset forfeiture staff to use forfeited assets to pay the restitution debt, and garnishing wages an offender may earn.

Victims can be compensated for losses with the proceeds of forfeited assets through DOJ’s Asset Forfeiture Program and in accordance with law and regulation. Federal regulations provide that the proceeds from forfeited assets are first used to cover program costs associated with forfeiture-related activities and next to pay valid owners, lien-holders, and federal financial regulatory agencies. Forfeited assets can then be distributed to other victims of crime as compensation for their losses if their loss is a direct result of the commission of the offense underlying forfeiture or a related offense. Any remaining funds from the forfeited asset may be placed into official use, distributed to foreign governments, state or local law enforcement agencies as part of the equitable sharing program to enhance cooperation with federal investigations.

When victims are eligible for compensation using forfeited assets, DOJ employs two processes: restoration and remission. The restoration process involves the USAO staff requesting funds on behalf of a victim when there is both an order of forfeiture and an order of restitution. Under the restoration process, USAO staff request DOJ’s Money Laundering and Asset Recovery Section to use the forfeited asset to pay a restitution debt. If DOJ approves the request for restoration, the funds from the forfeited property are then transferred to the Clerk of the Court who disburses this money to the victim. The remission process requires a victim of a crime to directly petition DOJ to receive funds from the forfeited property. According to officials in DOJ’s Criminal Division, the courts may not order restitution on behalf of victims who suffered a specific actual loss as a direct result of a crime for a variety of reasons, and therefore the remission process serves as a complement to the restoration process to ensure victims are made whole. For example, these officials stated that, among other reasons, the courts may not order restitution if a defendant dies prior to sentencing or if the case is one in which a court is not required to, and does not, order restitution, but the victim has suffered eligible losses.

Select USAOs Reported Documenting Requests for Restitution, but the Judiciary Did Not Always Document Reasons It Was Not Ordered EOUSA and Officials in Six USAOs Told Us Their Offices Document Requests for Restitution in Case Files

EOUSA and USAO officials in all six of the offices with whom we spoke told us that prosecutors document requests for restitution in their case files and that their offices employ other internal controls, such as the use of templates and forms, throughout the prosecution process to ensure that prosecutors request restitution as appropriate. EOUSA officials told us that although the agency does not track this information, they believed all USAOs generally document requests for restitution in their offices’ case files. Further, USAO officials in all six offices told us that prosecutors document requests for the court to order restitution in their case files by including this information in a written memorandum. To support prosecutors in documenting this information, all six offices we selected provide prosecutors with a prosecution memorandum template. Of the six templates we reviewed, four explicitly include a section for prosecutors to indicate whether victims have been identified and the extent of any victim losses.

In addition to these templates, four of six USAOs we selected had forms that prosecutors could use to identify whether cases have victims and their need for restitution when drafting criminal charging documents. Moreover, officials from two of the six USAOs told us their offices use this form as an internal control to ensure prosecutors have identified all victims and considered their need for restitution, if applicable. All six offices we selected also provided prosecutors templates for drafting plea agreements, and templates we reviewed from all six USAOs included language requesting the offender pay restitution, if applicable. However, prosecutors are not required to use plea agreement templates, nor are they required to request restitution as part of a plea agreement. USAO officials from one office stated that including this language in the plea agreement template served to remind prosecutors of their requirement to consider requesting restitution as stated in the U.S. Attorney’s Manual.

Select USAO officials also described various forms of management oversight to ensure prosecutors request restitution as appropriate. Specifically, four USAOs we selected require supervisory review of the form that prosecutors fill out when drafting criminal charging documents, which includes information on victims. Additionally, officials in all six USAOs told us that they require supervisory review of plea agreements for every case. For example, officials from two USAOs told us their office requires the Criminal Chief, the supervisor of all criminal cases, to approve documents in the plea agreement, which may include requests for restitution.

USSC Has Information on Restitution Orders for 95 Percent of All Offenders Sentenced From Fiscal Years 2014 through 2016

Federal courts sent information on sentencing decisions to USSC and USSC had information on restitution decisions for 95 percent of all offenders from fiscal years 2014 through 2016. According to our analysis of USSC data, 214,578 federal offenders were sentenced from fiscal years 2014 through 2016 and restitution was ordered for 33,158 of those offenders, or 15 percent. Collectively, courts ordered these offenders to pay $33.9 billion in restitution during this period. Courts did not order restitution for the remaining 181,420 offenders, or 85 percent. Table 1 shows the number of federal offenders sentenced and ordered to pay restitution for fiscal years 2014 through 2016, as well as the total amount of restitution ordered by the courts.

The majority of federal offenders were sentenced for immigration or drug- related offenses, and USAO officials in all six offices we selected told us that these types of offenses do not typically have victims with actual losses. For example, from fiscal years 2014 through 2016, USSC data showed that 131,088 offenders, 61 percent of offenders sentenced, were sentenced for immigration or drug-related offenses and courts ordered 999 (or less than 1 percent) of these offenders to pay restitution.

USSC data show that courts ordered restitution more often for offenders sentenced for other offenses, such as fraud. For example, courts sentenced 21,551 offenders for fraud offenses from fiscal years 2014 through 2016, and courts ordered restitution for 15,902 of these offenders, or 74 percent. Table 2 shows the number of offenders sentenced and the number ordered to pay restitution by offenses for which restitution was most often and least often ordered by courts from fiscal years 2014 through 2016.

The percentage of federal offenders ordered to pay restitution varied across federal court districts; from 2 percent of offenders in one district to 42 percent in another district. USAO officials we interviewed stated that some of this variation may be due to the types of offenses prosecuted within different districts. For example, officials from one USAO stated that their office, which had a high volume of immigration–related offenders, had few cases in which restitution was applicable. Our analysis of USSC data showed that from fiscal year 2014 through fiscal year 2016 and across all districts, districts with a higher than average rate of immigration-related offenders had lower than average rates of restitution ordered. Conversely, districts with above-average rates of offenders convicted of financial offenses such as fraud, embezzlement, money laundering, tax offenses, counterfeiting or bribery had higher than average rates of restitution ordered, as shown in table 3.

Judges indicated on documents sent to USSC that restitution was not applicable and thus did not order it for most offenders sentenced from fiscal years 2014 through 2016—167,230 offenders—or 78 percent of all offenders sentenced during this time period. Our analysis of sentencing information for the remaining offenders found that courts ordered restitution at a higher rate as compared to all offenders. Specifically, after excluding offenders for whom restitution was not applicable and were not ordered to pay it, we found that courts ordered restitution for 70 percent of the remaining 47,348 offenders.

EOUSA and USAO officials told us that in cases where there are identifiable victims, restitution may not be ordered for other reasons. EOUSA officials told us that restitution may not be ordered for several reasons, such as when victims provide no proof of their losses or when victims recover compensation through other means, such as through civil proceedings. Further, officials from one USAO told us that victims must provide documentation of their losses for restitution and, if victims are not able to provide this documentation, courts may decline to order restitution. Also, in certain cases, courts are not required to order restitution—such as when there is no identifiable victim or, on the other hand, when the number of identifiable victims is so large as to make restitution impractical, among other reasons. Additionally, the court might not order, or order only partial restitution for other reasons, such as when the value of property the defendant returned to the victim was deducted from the restitution award or because the victim received compensation from insurance.

Data on Five Percent of Restitution Orders Were Incomplete

If a court does not order restitution, or orders partial restitution, it is required to provide the reason for its decision and to provide that reason to USSC, but our analysis showed USSC did not always have these data. Specifically, from fiscal years 2014 through 2016, we found that restitution was not ordered—and no reason was documented in USSC data for that decision—for 9,848 offenders (5 percent of the 214,578 offenders sentenced during this time period). Information on offenders’ sentences, including restitution, assists USSC in its continuous reexamination of its guidelines and policy statements and ensures that various sentencing practices are achieving their stated purposes. Further, Standards for Internal Control in the Federal Government state that management should evaluate issues identified through monitoring activities or reported by personnel to determine whether any of the issues rise to the level of an internal control deficiency.

In response to our questions about the missing information on reasons why restitution was not ordered, AOUSC and USSC officials stated that they were unaware of the missing information or why it was missing. Judiciary officials stated that because various entities within the judiciary participate in the process of collecting and recording information on reasons restitution was not ordered, they did not know which entities could take action to improve USSC data. However, as previously discussed, if the court does not order restitution, or orders only partial restitution, the judge must provide the reason, and judges usually do so in a written Statement of Reasons form. The Judicial Conference, along with USSC, has developed guidance to help judges fill out the Statement of Reasons form and AOUSC supports the Judicial Conference in carrying out its policies. Further, courts must provide USSC the written Statement of Reasons form for sentences imposed. USSC is also responsible for collecting, analyzing, and distributing information on federal sentences provided by each district court, including information related to orders for restitution. However, judicial officials, including from the entities listed above, agreed that further studying the missing data may inform the judiciary of the cause of the missing data, as well as any efforts needed to improve USSC information.

Courts are required to provide reasons for not ordering restitution and to provide this information to USSC so that the agency can analyze and report on sentencing data. Determining why USSC data are incomplete could help inform the judiciary whether the issue rises to the level of an internal control deficiency and whether additional action can be taken to improve the transparency of sentencing decisions. Doing so could help the judiciary ensure reasons for not ordering restitution are provided consistently in all cases and potentially improve data provided to USSC, in turn supporting its mission to promote transparency in sentencing decisions.

DOJ Collected $2.95 Billion in Restitution Debt from Fiscal Years 2014 through 2016, but Most Debt Remains Outstanding Due to Offenders’ Inability to Pay

DOJ Generally Collected More on Newer Debts, Though Not All Collected Restitution Is Disbursed

Our analysis of DOJ data showed that DOJ collected $2.95 billion in restitution debt from fiscal years 2014 through 2016, half of which was collected on debts imposed during this period. The extent of collections across the 94 USAOs ranged from a high of $848 million in one USAO to a low of $1.2 million in another USAO. The median amount collected for USAOs was $10.7 million.

DOJ was more successful at collecting restitution on newer debts—debts imposed from fiscal years 2014 through 2016. Of the $2.95 billion in restitution debt collected, about half was collected from new debts imposed by courts during this time period. Specifically, DOJ collected $1.5 billion (4 percent), of the $34 billion ordered from fiscal years 2014 through 2016. The remaining half of the debt collected during this time frame was collected from debts imposed between fiscal year 1988 and fiscal year 2014.

New debts—imposed in fiscal years 2014 through 2016—were also more likely to be fully paid during this time period compared to all debts. Specifically, from fiscal years 2014 through 2016, DOJ collected the full amount of restitution on 4,003 of the 24,950 debts imposed during this time, 16 percent. However, across all debts, including debts imposed prior to fiscal year 2014, DOJ collected the full amount of restitution ordered on only 5 percent of debts. Across all restitution debts, DOJ collected at least some of the debt for one-third of debts and did not collect any restitution on the remaining two-thirds.

More than 60 percent of the restitution DOJ collected in fiscal years 2014 through 2016 was owed to non-federal victims ($1.8 billion), including individuals, corporations and state and local governments. An additional 37 percent of restitution was collected on behalf of federal agencies that were victims of crimes. One percent of restitution collected was community restitution, which is restitution collected for drug offenses that otherwise have no victims and which is disbursed to state victim assistance agencies and state agencies dedicated to the reduction of substance abuse, as shown in table 4.

AOUSC officials noted that some collected restitution is not disbursed to non-federal victims due to a lack of accurate contact information for these victims. Specifically, according to AOUSC, as of June 2017, courts had more than $132 million in restitution due to 113,260 victims that could not be disbursed because of a lack of accurate contact information for these victims. DOJ is required to provide courts with victim contact information, and victims are to notify DOJ if their contact information changes. However, AOUSC and USAO officials told us that this notification by victims may not always occur. For example, officials in one USAO told us that due to the length of court proceedings, victims may move without notifying the court prior to the disbursement of restitution and, as a result, the court is unable to disburse restitution to those victims.

Of $110 Billion in Outstanding Debt, 91 Percent Is Uncollectible Because Offenders Have Little Ability to Pay

According to our analysis of DOJ data, at the end of fiscal year 2016, $110 billion in restitution was outstanding and USAOs had identified $100 billion of that debt as uncollectible, as shown in figure 2. USAOs may identify debts as uncollectible and suspend collection actions on a debt for a variety of reasons, including that the offender has no, or only a nominal, ability to pay the debt.

Probation officials, EOUSA officials, and officials from five of six USAOs we interviewed stated that most outstanding restitution debt is identified as uncollectible and collection action is suspended because many offenders have little ability to pay the debt—a conclusion supported by USSC data. For example, according to USSC data, 95 percent of offenders ordered to pay restitution from fiscal years 2014 through 2016 received a waiver from paying a court-ordered fine, indicating their inability to pay. While courts are allowed to take an offender’s economic circumstances into consideration when issuing fines, they generally may not do so when ordering restitution. As a result, EOUSA and federal probation officials with whom we spoke stated that offenders ordered to pay restitution often do not have an ability to do so and therefore a large amount of restitution orders is uncollectible.

Select USAO Officials View DOJ’s Recommended Practices for Requesting, Ordering and Collecting Restitution as Generally Effective

Through various guidance documents, DOJ has identified and recommended numerous practices for DOJ prosecutors and FLU staff to use throughout the restitution process to help ensure full and timely restitution for victims. USAO officials in all six offices with whom we spoke stated that, based on their experience, these practices were generally effective. Specifically, DOJ and EOUSA officials identified practices for prosecutors and FLU staff to use when requesting restitution, facilitating court orders for restitution, and collecting restitution and documented these practices in several guidance manuals. Officials we interviewed from all six USAOs stated they were generally satisfied with the guidance from EOUSA and that they thought most of DOJ’s recommended practices were effective when requesting restitution, facilitating court orders for restitution, and collecting restitution.

Requesting restitution. Officials we interviewed from three USAOs identified coordination between prosecutors and case investigators prior to sentencing to identify victims and their losses as an important practice for requesting restitution. USAO officials from three of the six offices stated that gathering detailed information on an offender’s financial resources, which include assets that could be forfeited and used to pay a restitution debt, was a very effective practice related to requesting restitution.

Facilitating court orders of restitution. Although the courts, and not prosecutors, are responsible for ordering restitution, DOJ guidance identifies several practices that prosecutors can use to facilitate orders of restitution that may increase the likelihood of full and timely restitution for victims. Officials from three of six USAOs stated that the most effective practice related to ordering restitution was ensuring courts ordered restitution as due and payable immediately. Specifically, when offenders cannot pay restitution in an immediate lump-sum payment, the courts must specify a payment schedule through which the offender will pay restitution based on the offender’s ability to pay. In these cases, USAO officials stated that it is effective for prosecutors to ensure the restitution order specifies that restitution is due and payable immediately. According to an EOUSA official, this permits the agency to immediately pursue all collection remedies allowed by law whenever the debtor has or subsequently obtains the ability to pay.

Collecting restitution. Officials from all six USAOs stated that using the Treasury Offset Program (TOP), a program that allows for the reduction or withholding of a debtor’s federal benefits, such as a tax refund, was one of the most effective practices for collecting restitution. Specifically, officials in one USAO told us that TOP requires minimal effort for FLU staff and can result in a high amount of collections. As an example, officials from two USAOs told us their respective offices each recovered more than $500,000 dollars in restitution debt in fiscal year 2016 through TOP. Officials from three of the six offices also identified using wage garnishment as an effective practice for collecting restitution.

Across all parts of the restitution process, USAO officials we spoke with also consistently identified DOJ recommended practices related to internal and external communication and collaboration as effective for improving the restitution process. Specifically, the officials identified collaboration between various units in the USAO as an effective practice to ensuring restitution for victims. For example, USAO officials in two of the six offices highlighted coordination between Victim-Witness coordinators and prosecutors to help identify victims and quantify their losses as effective to assisting in the request for restitution. Additionally, USAO officials in all six offices stated that strong coordination between FLU personnel and criminal prosecutors to identify an offender’s financial resources and available assets was an effective practice to help ensure FLU staff could collect restitution using those resources or assets.

USAO officials from five of six offices identified external communication between FLU and the federal probation office as an effective practice. Specifically, officials from these USAOs stated that FLUs coordinating with probation officers during the offender’s supervision period to enforce restitution terms was an effective practice for collecting restitution. Additionally, according to EOUSA guidance, FLU staff can use outreach and training with other partners such as the probation office to facilitate information sharing on restitution collection issues and officials from five of six USAOs told us that FLUs conducting training and outreach is a very effective practice.

In addition, probation officials we interviewed in each of the six federal judicial districts we selected stated that ongoing communication between USAO staff and probation officers is effective to ensuring victims are identified and receive full and timely restitution. Probation officials from one court district emphasized the importance of a good working relationship with the USAO, stating that the probation office and USAO are better able to ensure victims and their losses are accurately identified and defendants’ ability to pay is adequately addressed when working collaboratively. A probation official from another office said that probation officers regularly coordinated with the USAO’s FLU, and this coordination was particularly important on cases involving complex financial crimes, where the offender has a complicated financial portfolio. Further, probation officials from five of six probation offices also stated that attending training conducted by the FLU is a very effective practice.

EOUSA and selected USAO officials told us that while these practices may be useful in some circumstances, they may not be effective or applicable in all cases or in all districts. Specifically, practices DOJ recommends may be effective when offenders have the ability to pay restitution but are simply unwilling to do so; however, USAO officials in five of six offices stated that these practices cannot mitigate the fact that many offenders lack the ability to pay restitution because they lack assets and income. Additionally, while EOUSA guidance recommends that FLU staff contact co-defendants or victims for information on the whereabouts or assets of offenders who owe restitution, officials from three USAOs told us this was not effective. According to one official, although co- defendants are sometimes eager to share information, the information is usually unreliable. USAO officials also identified some recommended practices as not applicable to their district. For example, EOUSA recommends that FLU units request Asset Investigation assistance from EOUSA for complex cases involving large amounts of valuable assets. However, USAO officials in a small, rural district with whom we spoke stated that the types of cases their office prosecutes tend not to be the type of financial cases that warranted use of this resource.

DOJ Could Improve Oversight of the Collection of Federal Restitution, Including the Use of Forfeited Assets to Pay Restitution Debt DOJ Does Not Have Measures or Goals to Assess Performance in the Collection of Restitution

DOJ has identified improving debt collection—including court-ordered restitution—as a major management initiative in its 2014-2018 Strategic Plan. However, it does not have any measures or goals in place to assess its performance in meeting this initiative or meet requirements that it evaluate its performance in seeking and recovering restitution as required by statute. In 2001, we recommended that DOJ adequately measure its criminal debt collection performance against established goals to help improve collections and stem the growth in uncollected criminal debt. DOJ concurred with this recommendation, and as of fiscal year 2003, annually assessed each district based on established collection goals for that district. However, as of September 2017, DOJ no longer evaluates each district based on established goals. EOUSA officials stated that DOJ no longer uses these performance goals and that the agency did not maintain records for when or why it stopped.

EOUSA officials stated that while the agency does not have any measures or goals to assess USAOs’ performance in improving debt collection, including the collection of federal restitution, they are working with DOJ’s Justice Management Division to develop a suite of analytical tools to monitor the collection of debt across all offices. According to DOJ, some of these analytical tools have been implemented and additional tools will be implemented by March 2018. EOUSA officials stated that these tools will help the agency determine which cases are most likely to result in significant collections and the types and timing of enforcement actions that generate maximum debt recovery results. EOUSA officials further stated the analytical tools will allow the agency to compare districts’ efforts based on a variety of factors (e.g., caseload, staff size, and enforcement actions). These analytical tools may provide EOUSA with valuable insight into the present condition of the collection of restitution across USAOs, but they will not provide DOJ with a baseline performance standard that could be used to indicate if USAOs’ efforts to collect restitution debts are having a measurable impact in meeting DOJ’s objective of improving debt collection.

Additionally, EOUSA conducts evaluations of each USAO every 4 years, which include a review of FLU operations, but EOUSA officials stated that these reviews do not include oversight of the collection of restitution. Among other aspects of USAO operations, these internal evaluations review the extent to which each FLU is complying with statutory and DOJ requirements related to debt collection, has sufficient program resources, and adequately manages its caseload. However, DOJ and EOUSA officials told us that it did not plan to use these internal evaluations to meet the Justice for All Reauthorization Act of 2016 requirement to evaluate each USAO on its performance in seeking and recovering restitution for victims. Specifically, the officials stated that these internal evaluations are not an appropriate mechanism to meet the law’s requirements because the internal evaluations do not specifically review the seeking and recovery of restitution for victims. According to DOJ officials responsible for the internal evaluation program, these evaluations are largely intended to provide onsite management assistance and analysis of how the USAO allocates its administrative and legal personnel resources rather than the office’s efficacy in collecting restitution.

Consistent with requirements outlined in the Government Performance and Results Act Modernization Act of 2010 (GPRAMA), performance measurement is the ongoing monitoring and reporting of program accomplishments—particularly towards pre-established, objective and quantifiable goals—and agencies are to establish performance measures to assess progress towards those goals. While GPRAMA is applicable to the department or agency level, performance measures and goals are important management tools at all levels of an agency, including the program, project, or activity level. Agencies can use performance measurement to make various types of management decisions to improve programs and results, such as developing strategies and allocating resources, including identifying problems and taking corrective action when appropriate. Further, the Justice for All Reauthorization Act of 2016 requires DOJ to evaluate each USAO in its performance in recovering restitution for victims.

DOJ and EOUSA officials told us that DOJ does not require USAOs to establish performance measures or goals to assess their progress in improving the collection of restitution. DOJ and EOUSA officials also told us that each USAO could develop performance goals but that they were unaware of the extent to which USAOs did so, and further, they do not track the extent to which USAOs met performance goals. Additionally, these officials stated that because each USAO faces different constraints in its ability to collect restitution, establishing a uniform and consistent performance measure and goal would be challenging. EOUSA officials noted that some USAOs may have more resources, such as more FLU staff or specialized asset investigators, available to pursue collections as compared to other offices and therefore offices with fewer resources could have difficulty meeting a performance goal. Further, EOUSA and USAO officials stated that the extent to which DOJ can collect on a debt is heavily influenced by factors outside of the agency’s control, such as an offender’s ability to pay.

USAOs could use information provided by performance measures and goals—such as an office’s ability to meet a performance goal—to make managerial decisions to help address these constraints, such as by increasing the allocation of staff resources. Further, to avoid comparing USAOs to a nationally set performance goal that does not account for specific constraints faced by each office, DOJ could—as it did in fiscal year 2003—require each USAO to establish its own objective, quantitative collection goals based on historical, district-specific collection statistics. Finally, as previously discussed, each USAO already accounts for external factors that affect the collectability of a debt, such as an offender’s ability to pay, by suspending collection action on debts it identifies as uncollectible. Therefore, any performance measures and goals developed could be based solely on debts that the USAO already has determined to be collectible.

Stakeholders we interviewed—including officials from one USAO, probation officials in two districts, and officials with DOJ’s Office of Crime Victims—noted that receiving restitution is both emotionally and financially important to victims. Specifically, officials from one USAO and one probation office noted that while many victims may never receive the full amount of restitution ordered, receiving even a minimal amount of restitution is a symbolic victory and that it is important for victims to know the government is making efforts to collect restitution on their behalf. The legislative history of the MVRA echoes these sentiments, providing that even nominal restitution payments have benefits for the victim of crime, and that orders of restitution are largely worthless without enforcement. Yet, according to our analysis, $10 billion of restitution debt DOJ identified as collectible remained outstanding at the end of fiscal year 2016. Further, the extent to which USAOs collected restitution varied widely— from a high of one USAO district collecting nearly 350 percent of all collectible debt in fiscal years 2014 through 2016 to a low of one district collecting less than one percent of collectible debt in the same period.

Without performance measures, including the establishment of goals, DOJ cannot assess if this variation is due to factors outside the control of USAOs or due to management deficiencies that require corrective action.

Developing performance measures and goals for each USAO related to the collection of restitution would allow DOJ to assess its progress in achieving its major management initiative in improving debt collection— including debts owed to victims as court-ordered restitution. Doing so would also better position DOJ to meet the requirements of the Justice for All Reauthorization Act of 2016 to evaluate offices in their performance in recovering restitution on behalf of victims and to use performance information to improve the practices of offices as needed.

DOJ Could Improve Its Information on Forfeited Assets Available for Victims

Although asset forfeiture and restitution are separate parts of a criminal sentence, DOJ guidance states that using forfeited assets to benefit victims is a way that DOJ can help ensure eligible victims of crime are compensated for their losses. Further, DOJ regulations and policy require that eligible victims receive compensation from forfeited assets before certain other uses, such as official use or equitable sharing. However, while DOJ tracks the amount of compensation provided to victims through forfeited assets, it does not have assurances that forfeited assets are being used to compensate victims to the greatest extent possible.

According to DOJ information, the agency made payments of about $595 million to eligible victims other than owners of the property from the Assets Forfeiture Fund from fiscal years 2014 through 2016, or 15 percent of $3.9 billion in paid expenditures during this period, as shown in table 5.

As table 5 shows, DOJ can account for cases in which forfeited assets were used to compensate eligible victims who were not owners or lienholders. However, DOJ does not have information on the overall universe of victims who could have been eligible to receive compensation from forfeited assets. Further, it does not have insight into any reasons why funds from forfeited assets were not used for these victims. Specifically, DOJ officials stated that the department collects information on whether victims have been identified in cases associated with forfeited assets, and if restitution is anticipated in these cases, but it does not track the extent to which these victims were ultimately compensated using forfeited assets. Further, DOJ also does not collect information on reasons why victims were not compensated using funds from forfeited assets. While DOJ is required to use forfeited assets to compensate victims before using those assets for certain other purposes, the agency is unable to provide assurances that it is always doing so because it does not have information on the overall universe of victims or reasons why victims were not compensated using forfeited assets. As a result, DOJ does not have a basis to know whether the $595 million provided to victims from fiscal years 2014 through 2016 is the maximum amount of compensation the agency could have provided to victims using forfeited assets.

Full use of forfeited assets for victim compensation has long been, and continues to be, a goal of DOJ. In 2005, an interagency task force—led by DOJ and including the Department of Treasury, Office of Management and Budget and AOUSC—developed a strategic plan to improve the collection of criminal debt. Among other goals included in its strategic plan, the task force stated a goal of examining how asset seizure and forfeiture procedures can be used to maximize recoveries for victims. More recently, DOJ reported in its 2014-2018 Strategic Plan that it would make every effort to recover full and fair restitution for victims using the federal forfeiture statutes to preserve and recover criminal proceeds. Specifically, DOJ stated that using federal forfeiture statutes to recover full and fair restitution for victims is one part of its strategy to protect the rights of the American people and enforce the rule of law. Finally, DOJ officials told us they considered providing compensation to victims as one goal of the Asset Forfeiture Program and EOUSA stated in guidance that asset forfeiture is the most widely available and effective tool to seize assets for restitution purposes. Standards for Internal Control in the Federal Government call on federal managers to design control activities to achieve the agency’s objectives. These controls can include using quality information to make informed decisions, evaluate the entity’s performance in achieving key objectives, and address risks.

DOJ officials told us that they do not track the extent to which victims were not compensated using forfeited assets because USAO staff are not required to request that these assets be used for victim compensation. DOJ officials explained that staff are required to indicate in the agency’s forfeited asset database, the Consolidated Asset Tracking System, if victims exist in cases associated with forfeited assets and if restitution is anticipated in these cases. However, these officials stated that staff are not required to then compensate these victims using the forfeited assets or to indicate why these assets were not used for this purpose. DOJ officials told us that decisions to compensate victims using forfeited assets are best left to the judgment of the USAO staff familiar with the case, such as the prosecuting attorney or asset forfeiture staff.

DOJ officials pointed to informal communication and coordination among prosecutors, the FLU, and the Asset Forfeiture unit in each USAO as a means to provide compensation to victims as appropriate. However, communication and coordination among these groups has been a challenge for USAOs, as the DOJ Inspector General found in a June 2015 review of DOJ’s debt collection program. Similarly, during our current review, EOUSA and USAO officials we spoke with identified communication and coordination as an area for improvement. EOUSA officials told us that while they thought that FLU staff and Asset Forfeiture unit staff were collaborating more frequently to use forfeited assets to collect restitution debts since the issuance of the DOJ Inspector General’s report, the extent of collaboration between these two units still varied across USAOs. Further, officials we talked to in two USAOs and one probation office noted that USAO staff could improve their use of forfeited assets for restitution payments. For example, officials in one probation office noted that it was their practice to identify forfeited assets that could be used for compensation in the PSR because they had observed that USAO staff were frequently not applying such assets to victim compensation.

While DOJ may allow USAO staff to use discretion when requesting restoration or alerting victims to assets available for compensation, increasing the agency’s understanding of the extent to which assets could have been—but were not—used for victim compensation, and the reasons for those decisions, does not affect that discretion. There are legitimate reasons why victims might not be compensated using forfeited assets; for example, the assets may have other owners or lienholders that must be compensated prior to victims, or offenders may have other means by which to pay victims restitution. However, there are also instances where victims may have not received compensation through forfeited assets as a result of unintentional circumstances. For example, according to DOJ’s Asset Forfeiture Manual, forfeiture actions can proceed faster than the parallel criminal case. Consequently, assets might be equitably shared, placed into official use, or remitted to victims who file petitions long before restitution is ordered, and therefore would not be available for other victims who wait for restitution to be ordered after an offender is sentenced. To avoid this outcome, DOJ recommends that USAOs coordinate to ensure the retention of property for victim compensation. However, although DOJ officials responsible for leading DOJ’s asset forfeiture efforts highlighted the need for expedient coordination when USAO staff are considering using forfeited assets to compensate victims, they stated this may not always occur. As a result, otherwise eligible victims may not always be compensated through forfeited assets.

By gathering information about the extent to which assets were used for victim compensation—including when they were not used and reasons why not—DOJ could have a better understanding of potential instances where victims could be, but are not, receiving compensation through forfeited funds and could take steps to address them accordingly. Options for gathering such information could include doing a one-time retrospective study of forfeited assets with victims or anticipated restitution to determine the extent that assets were used for victim compensation, or creating a tracking mechanism through its forfeited assets database, or another system.

Gathering information on the extent to which forfeited assets were used for victim compensation, including when not used and reasons why not, could position DOJ to take action to increase the use of these assets for victim compensation if warranted. These actions could include providing funds for increased asset forfeiture staff in USAOs, providing additional training or changing policies or procedures for using forfeited assets to compensate victims. Fully and systematically understanding the extent to which issues, such as a lack of coordination within USAOs, result in victims not being compensated using forfeited assets would give DOJ a basis upon which to develop improvements to the Asset Forfeiture Program. Such information would also provide DOJ and staff at all USAOs with information to evaluate its performance in achieving one of the goals of the Asset Forfeiture Program and taking action to meet the agency goal of protecting the rights of the American people—including the right to full and fair restitution for victims.

Conclusions

Restitution serves the criminal justice goal of holding offenders accountable and, to the extent possible, restoring victims of federal crimes to their prior position had the crime not occurred. Many victims are unlikely to receive any meaningful portion of court-ordered restitution owed to them because of offenders’ inability to pay these debts. However, the fact that restitution is difficult to collect does not negate the important responsibilities of the judiciary and DOJ to properly manage and oversee all aspects of the restitution process.

By law, courts are to state why they did not order restitution and provide that information to USSC. While this information was collected and recorded in USSC data for most offenders, we found that this information was missing for thousands of offenders. It is important for the judiciary to ensure that this information is consistently collected and recorded to assist USSC in its continuous re-examination of its guidelines and policy statements and ensure that various sentencing practices are achieving their stated purposes. The judiciary could support USSC in this endeavor by determining why this information is missing. Results from this study could help inform the judiciary whether this issue rises to the level of an internal control deficiency and whether additional action can be taken to improve the transparency of sentencing decisions.

While DOJ has delegated collection activities for restitution to USAOs, it could provide better oversight to ensure it is making reasonable efforts to collect restitution and meeting its responsibility to victims. USAOs have identified a significant portion of outstanding restitution debt as uncollectible, but they have also identified $10 billion of outstanding restitution debt that could be collected. Developing and implementing performance measures and goals for each USAO would allow DOJ to gauge USAOs’ success in collecting this restitution and, by extension, the department’s success in achieving its major management initiative to increase the collection of debt. Further, DOJ could use performance information to improve the practices of offices in seeking and recovering restitution, consistent with a requirement in the Justice for All Reauthorization Act of 2016.

Finally, DOJ could gain greater visibility into the use of forfeited assets to compensate victims by gathering information on cases in which victims have been identified and restitution is anticipated but forfeited assets are not used, and any reasons why. Doing so would better position DOJ to take action to increase the use of forfeited assets to compensate eligible victims if warranted and to provide assurance that it is maximizing the use of asset forfeiture in satisfying restitution debts, one of the agency’s most effective mechanisms for satisfying restitution.

Recommendations for Executive Action

We are making three recommendations, including one to the judiciary and two to DOJ. Specifically: Judiciary officials, including AOUSC, USSC, and the Judicial Conference, should determine why USSC data on the reasons restitution was not ordered are incomplete. Additionally, if warranted based on this information, judiciary officials should take action to ensure USSC data records include all required information for orders of restitution. (Recommendation 1)

To improve oversight of the collection of restitution we recommend that the Attorney General:

Develop and implement performance measures and goals for each USAO related to the collection of restitution, and measure progress towards meeting those goals. (Recommendation 2)

In cases where forfeited assets were not used to compensate victims, gather information on reasons why forfeited assets were not used for victims. If warranted based on this information, take action to increase the use of forfeited assets to compensate eligible victims. (Recommendation 3)

Agency Comments

We provided a draft of this report for review and comment to DOJ, the Judicial Conference of the United States, AOUSC, USSC, and the Federal Judicial Center. DOJ concurred with our recommendations and provided technical comments, which we incorporated as appropriate. AOUSC provided written comments, which are reproduced in appendix III. In its written comments, AOUSC noted that it would work with the USSC to address our recommendation.

We are sending copies of this report to the appropriate congressional committees and the Attorney General, the Judicial Conference of the United States, the Directors of AOUSC, the Staff Director of USSC, the Federal Judicial Center 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 IV.

Appendix I: Number and Percentage of Federal Offenders Ordered to Pay Restitution, Fiscal Years 2014 through 2016

According to our analysis of data from the U.S. Sentencing Commission (USSC), 214,578 federal offenders were sentenced from fiscal years 2014 through 2016. Table 6 shows the number of offenders sentenced and the number and percentage of offenders ordered to pay restitution for each primary offense of conviction in fiscal years 2014 through 2016.

Appendix II: Views on DOJ-Recommended Restitution Practices from Officials in Selected in U.S. Attorneys’ Offices

The Department of Justice (DOJ) has identified and recommended numerous practices for federal prosecutors and Financial Litigation Unit (FLU) staff to use throughout the restitution process through various guidance documents. We conducted semi-structured interviews with officials from six U.S. Attorneys’ Offices (USAO) to obtain their views on the restitution process and the extent to which they believed DOJ- recommended restitution practices related to the restitution process were effective. In particular, we spoke with USAO officials from the District of Connecticut; the Southern District of California; the District of New Jersey; the Southern District of Ohio; the District of South Dakota; and the District of Wyoming.

Tables 7 through 9 show the results of our semi-structured interviews. In particular, table 7 shows practices related to requesting restitution and the extent to which USAO officials found these practices effective. Table 8 shows practices related to facilitating orders of restitution and the extent to which USAO officials found these practices effective. Table 9 shows practices related to collecting restitution and the extent to which USAO officials found these practices effective. Each table also indicates practices that officials we interviewed considered as most important or effective for helping ensure victims receive full and timely restitution.

Appendix III: Comments from the Administrative Office of the U.S. Courts

Appendix IV: GAO Contact and Staff Acknowledgments

GAO Contact

Staff Acknowledgements

In addition to the contact named above, Chris Ferencik (Assistant Director); Kathleen Donovan (Analyst-in-Charge); Enyinnaya David Aja; David Alexander; Lacinda Ayers; Carla Brown; Emily Hutz; Janet Temko- Blinder; and Adam Vogt, made key contributions to this report.