29 Sep 23

How Restitution Works in Federal Criminal Cases

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Last Updated on: 2nd October 2023, 10:43 pm


How Restitution Works in Federal Criminal Cases

Restitution is a big part of the criminal justice process in federal cases. It’s basically when the court orders a defendant who’s been convicted of a crime to pay back any victims for their losses. The goal is to try and make the victim “whole” again financially, or at least as close as possible. Restitution can cover things like medical bills, damaged property, lost income, funeral expenses, and other costs. It’s an important way for victims to get some compensation and feel like justice was really served.

There’s a few key things to understand about how restitution works in federal criminal cases:

Restitution Is Mandatory for Many Crimes After 1996

Under federal law, restitution became mandatory for most crimes occuring after April 24, 1996[1]. Before that, judges had more discretion on whether or not to order restitution. Now, for most federal cases after ’96, the court has to order the defendant to pay restitution to any victims as part of their sentence.

Restitution Covers Victims’ Actual Losses

When restitution is ordered, the amount is supposed to match the actual losses suffered by each victim[1]. So if you were defrauded for $20,000, the restitution would be $20,000 (plus maybe interest or legal fees). The court uses evidence like receipts, bills, expert estimates, etc. to calculate the right restitution amount for each victim.

Not All Losses Are Covered

While restitution is meant to repay victims for their direct losses, there are some types of losses that are not covered[2]. For example, restitution usually can’t include penalties, fines, legal fees for civil cases, or pain and suffering. Basically anything not a direct financial loss related to the crime itself is probably not eligible.

Many Defendants Can’t Pay the Full Amount

In a perfect world every victim would get fully repaid, but in reality many defendants simply don’t have enough money to pay the full amount they owe[2]. Large restitution orders in the hundreds of thousands or millions are common. But if a defendant has no assets or ability to earn money, they may never pay more than a fraction of what they owe.

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The Government Tries to Collect What It Can

While full restitution is often unlikely, the government does make significant efforts to collect whatever they can from each defendant. The court sets a payment schedule based on what the defendant can reasonably afford. Federal probation officers monitor payments and report issues to the court. The government can garnish wages, seize assets, revoke passports, and take other legal actions to pressure defendants to pay[3].

Unpaid Restitution Is Not Forgiven

Importantly, any unpaid restitution does NOT go away over time. The government can continue trying to collect for up to 20 years after release from prison[4]. The restitution order acts like a civil judgment that can be renewed. Wages or tax refunds can potentially be garnished decades later until the amount is paid in full (or the 20 years runs out).

The Victim Has to Request Restitution

While the court is required to order restitution, the victim has to formally request it first for the process to start. The prosecutor will contact known victims before sentencing and have them fill out a claims form detailing their losses. This gets submitted to the court as evidence to support the restitution amount.

The Court Calculates the Restitution

At sentencing, the judge reviews the victim claims and evidence and makes the final determination on the restitution amount. Both the prosecution and defense can object or present arguments if they disagree with the proposed amount. Ultimately it is up to the judge to settle on a final restitution order.

Defendants Can Appeal the Restitution Order

Like other aspects of their sentence, a defendant can appeal their restitution order if they feel it is unfair or excessive[5]. The appeals process can sometimes result in the restitution being reduced or recalculated. But appealing does not delay the obligation to pay in the meantime.

No Restitution if the Victim Can’t Be Found

In some cases, a victim simply can’t be located or identified, so they never request restitution. If there is no identifiable victim, the court legally cannot order restitution to be paid. Even if the crime clearly caused losses, with no one to pay, there is no restitution.

Restitution May Go to a Related Third Party

While restitution generally goes directly to the victim, sometimes a third party that reimbursed the victim will receive the payments instead. For example, an insurance company that paid out a claim related to the crime would get the restitution rather than the individual victim.

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Criminal Restitution Is Separate from Civil Lawsuits

Court-ordered restitution is completely separate from any civil lawsuits victims may file to seek additional damages. Victims can pursue both restitution and civil damages. The civil system provides more opportunity for things like pain and suffering damages that are not available through restitution.

That covers some of the key facts about how federal criminal restitution works. The system has good intentions, but can be complex and imperfect in practice. Full repayment is rare, but restitution can still provide meaningful help to victims and accountability for offenders. It will likely continue to be a major component of federal sentencing as judges seek justice and fairness.