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Crime Victim Restitution Today: The Legal Framework


Since enacting the restitution provisions of the VWPA in 1982, Congress has continued to expand the federal restitution provisions. As a result of the Mandatory Victims Restitution Act of 1996, restitution is currently mandatory upon a defendant's conviction for a federal violent or property crime in which there is an identifiable victim who has directly and proximately suffered physical injury or pecuniary loss. Upon conviction for other federal crimes, including drug offenses, the imposition of restitution is discretionary. In instances in which restitution is imposed, the court "shall order restitution to each victim in the full amount of each victim's losses as determined by the court and without consideration of the economic circumstances of the defendant." In determining the manner in which restitution is to be paid, the court considers the defendant's resources, assets, earning potential, and obligations.

A defendant's liability to pay restitution lasts twenty years from the entry of judgment or release from imprisonment, whichever is later. The Attorney General is responsible for the collection of unpaid restitution and is authorized to use the general means available to enforce civil judgments, such as liens and garnishment. The court can utilize a variety of sanctions upon a defendant's default of his restitution obligations, including modification or revocation of probation or supervised release, resentencing, contempt, injunctive relief, and forced sale of property.

Since the enactment of the VWPA, federal reviewing courts have actively interpreted the scope of federal restitution and supervised its implementation. Initially, reviewing courts addressed constitutional challenges to the facial validity of the restitution structure embodied in the VWPA (and maintained through its subsequent amendments). Constitutional challenges were raised on Fifth, Seventh, and Eighth Amendment grounds.

Reviewing courts rejected Fifth Amendment due process challenges to the restitution statute, At the outset, appeals courts noted that the degree of due process required at sentencing is not the same as that required at trial. Because the sole interest being protected at sentencing is the right not to be sentenced on the basis of invalid or inaccurate information, only that degree of protection necessary to ensure that sentencing judges are sufficiently informed to appropriately exercise their sentencing authority is required. The considerations required by the restitution statutes, as well as the protections given to a defendant by Federal Rule of Criminal Procedure 32 to challenge presentence information, to make a statement in his own behalf, and to present any information in mitigation of punishment, provide a sufficient basis to ensure a defendant's due process rights regarding restitution ordered at sentencing.

Reviewing courts also rejected Fifth Amendment equal protection and Eighth Amendment cruel and unusual punishment claims that restitution may not be imposed on defendants who are indigent at sentencing. These courts noted that because the restitution statutes allow an extended period of time within which to satisfy a restitution order, indigence at sentencing is not a bar to restitution. Constitutional concerns would be raised only if a restitution order were enforced at a time when a defendant, though no fault of his own, was unable to comply?

Claims that the restitution procedures transformed the judicial sentencing proceeding into a "juryless" civil proceeding in violation of the Seventh Amendment were also rejected. Appellate courts characterized restitution as a form of punishment that serves recognized punishment goals of deterrence, rehabilitation, and retribution. These courts noted that the Constitution does not require a jury to determine any aspect of a defendant's sentence. Although the restitution sanction has certain civil aspects and consequences it was found to be fundamentally different from a civil adjudication in that it can only be imposed after a determination of criminal guilt, the victim is not party to the sentencing proceeding, and factors such as the defendant's financial condition are required to be considered concerning its imposition or implementation. Reviewing courts concluded that the civil aspects of restitution do not transform a criminal sentence into a civil proceeding-requiring act finding by a jury.

After resolving the initial facial constitutional challenges to the restitution statutes, the federal appellate courts have primarily addressed questions concerning the scope of the statutes, such as the types of victims, victim losses, and offenses covered by the restitution provisions. Significant early litigation concerned the VWPA's authorization of restitution upon a defendant's conviction to "any victim of the offense." Appellate courts differed as to whether this provision permitted courts to require defendants charged with multiple offenses, but actually convicted of fewer offenses, to make restitution for losses related to the other alleged crimes. The Supreme Court resolved the issue, in 1990, by holding that the "language and structure of the [VWPA] make plain Congress' intent to authorize an award of restitution only for the loss caused by the specific conduct that is the basis of the offense of conviction." Soon after this decision, however, Congress clarified and expanded the scope of restitution provisions regarding offenses involving schemes, conspiracies, and patterns of criminal activity, as well as regarding convictions requiring restitution as part of a plea agreement, significantly increasing the number of victims eligible for restitution.

The federal courts have matched Congress' increase in the number of victims eligible for restitution with a generally expansive interpretation of the types of eligible victims and victim losses. In addition to the human, direct victims eligible for restitution, reviewing courts have found restitution warranted for some indirect human crime victims, such as family members or incidental persons suffering losses as a result of an offender's commission of crimes against direct victims. Courts have also upheld restitution awards to entities directly and sometimes indirectly victimized by defendants, as illustrated by restitution awards to a computer company for an offender's fraudulent acquisition of software as well as to the Federal Deposit Insurance Corporation, as insurer and receiver of a failed bank victimized by an offender.

Appellate courts have also upheld a wide range of amounts and types of restitution. For example, restitution orders in the millions of dollars have been upheld when supported by evidence of victim loss. In addition to direct losses resulting from a criminal act, restitution for various ancillary costs associated with the crime has also been upheld, including pre-judgment and post-judgment interest. Thus, as authorized by Congress and interpreted by the federal courts, the scope of the federal restitution provisions can be significant.


Restitution provisions have also been expanded significantly by the states. Of the approximately thirty states that currently have constitutional provisions granting victims certain rights in the criminal justice process, over half include some type of a victim right to restitution. Every state has statutory restitution provisions, most often authorizing restitution as a probation condition or as an independent sentence, or both. Although approximately half of the states use language in their statutory provisions, which creates a presumption that the imposition of restitution is mandatory, most of these provisions include various exceptions, which render the provisions permissive. In the remaining states, the imposition of restitution is entirely permissive and within the discretion of the sentencing authority. In the majority of states, a restitution order is enforceable in the same manner as a civil judgment.

Reviewing state courts have generally interpreted restitution provisions as broadly as the federal courts. State courts have upheld restitution awards to a wide range of direct and indirect human and institutional victims of crime. Individuals directly victimized by crimes ranging from assault and battery to false swearing and disorderly conduct, have received restitution awards. Humans indirectly victimized by crime have also received restitution in some instances, such as victims' family members or persons whose property was damaged during offenders' commission of crimes against others. Entities directly victimized in crimes ranging from theft or embezzlement to fraudulent receipt of public assistance or other funds, have been awarded restitution. Restitution has sometimes also been granted to indirectly victimized entities, such as direct victims' insurers or employers.

State courts typically grant victims restitution designed to compensate them for direct losses from crime, such as costs of medical treatment in cases of physical injury or those associated with direct property loss.



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