Charles Doyle
Senior Specialist in American Public Law
Federal
courts may not order a defendant to pay restitution to the victims of his or
her crimes unless authorized by statute to do so. Several statutes supply
such authorization. For instance, federal courts are statutorily required
to order victim restitution when sentencing a defendant either for an
offense against property, including fraud or deceit, proscribed in Title 18 of
the United States Code or for a crime of violence. The obligation
exists even if the defendant is indigent, and restitution must take the
form of in-kind, lump sum, or installment payments. Federal courts are
permitted, but not required, to order victim restitution when sentencing a defendant
for any offense proscribed in Title 18 for which restitution is not required.
Federal courts are permitted to order victim restitution when sentencing a
defendant for various controlled substance and aviation safety offenses.
In addition, a federal court may order restitution pursuant to a plea
bargain or as a condition of probation or supervised release.
As a general rule, restitution is available only to victims who have suffered a
physical injury or financial loss as a direct and proximate consequence of
the crime of conviction, and only to the extent of their losses. Several
provisions governing restitution following conviction for particular crimes
permit awards for types of losses that might not otherwise be permitted under
the general restitution provisions. For example, the Identity Theft
Enforcement and Restitution Act of 2008 (18 U.S.C. 3663(b)(6)) authorizes
restitution orders to compensate victims for the cost of remediating the
intended or actual harm caused by certain identity theft violations. The courts
are divided over the extent to which a defendant convicted of possession
of child pornography may be ordered to make restitution to the child
depicted in the material.
When restitution is authorized, a probation officer gathers information from
victims, the government, the defendant, and other sources for a report to
the court. The parties receive copies of the report and may contest its
recommendations. The court has considerable discretion as to the manner
and scheduling of restitution payments, but the authority may not be delegated
to probation or prison officials. Furthermore, the order must provide for
full restitution for all victims unless the sheer number of victims or the
complications of a given case preclude such an order.
Under the abatement doctrine, when a defendant dies before his or her appeal
has become final, the law treats the indictment and conviction as though
they had never happened. The conviction is vacated and the indictment
dismissed. The courts do not agree on whether the doctrine also reaches
unfulfilled obligations under a restitution order.
This report is an abridged version of CRS Report RL34138, Restitution in
Federal Criminal Cases—without footnotes, citations to most
authorities, or appendixes found in the longer report. Related reports
include CRS Report RL33679, Crime Victims’ Rights Act: A Summary and Legal Analysis
of 18 U.S.C. 3771, available in abridged form as CRS Report RS22518, Crime
Victims’ Rights Act: A Sketch of 18 U.S.C. 3771.
Date of Report: January 16, 2013
Number of Pages: 11
Order Number: RS22708
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