Order Code RS22708
August 22, 2007
Restitution in Federal Criminal Cases:
A Sketch
Charles Doyle
Senior Specialist
American Law Division
Summary
Federal courts may not order a defendant to pay restitution to the victims of his or
her crimes unless authorized to do so. Several statutes supply such authorization. For
instance, federal courts are statutorily required to order victim restitution when
sentencing a defendant for a felony that constitutes either a crime of violence or an
offense against property, including fraud or deceit proscribed in title 18 of the United
States Code. The obligation exists even if the defendant is indigent, and restitution must
take the form of in-kind or installment payments. Moreover, a court may not order
restitution as required by the statute and then grant the defendant remission of
restitution. Ordinarily, however, 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. In addition, federal courts are
permitted to order victim restitution when sentencing a defendant for various controlled
substance and aviation safety offenses, or any felony proscribed in Title 18 of the United
States Code for which restitution is not mandatory. Moreover, a federal court may make
restitution a condition of probation or supervised release.
When restitution is to be ordered, a probation officer prepares a report after
gathering information from victims, the government, and the defendant. 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.
This is an abridged version of a longer report, CRS Report RL34138, Restitution
in Federal Criminal Cases, without the footnotes and citations to authority found in the
longer report. Related reports include CRS Report RL34139, Criminal Restitution
Proposals in the 110th Congress, available in an abridged version as CRS Report
RS22709, Criminal Restitution in the 110th Congress: A Sketch, all by Charles Doyle.

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Background
The Victim and Witness Protection Act of 1982 (VWPA) vested federal courts with
discretion to order restitution in any criminal case arising out of Title 18 of the United
States Code or in air piracy cases. The Violent Crime Control and Law Enforcement Act
of 1994 established mandatory restitution as a feature of the federal criminal prohibitions
on sexual abuse, sexual exploitation of children, and domestic violence. The Mandatory
Victim Restitution Act (MVRA) portion of the Antiterrorism and Effective Death Penalty
Act of 1996 made mandatory restitution a consequence of conviction in most serious
federal criminal cases (i.e., crimes of violence and crimes against property, including
fraud).
Victims
The federal restitution statutes address three questions: Who qualifies as a victim?
What crimes trigger restitution authority? What type of injuries or losses does restitution
cover? As originally cast, Section 3663 (VWPA) authorized restitution for “any victim”
of any crime proscribed in Title 18 of the United States Code, but did not define “victim.”
The Supreme Court read the statute narrowly and held that it authorized restitution only
for the crime of conviction; it did not authorize restitution for related charges dropped as
part of a plea agreement. Congress responded almost immediately with a more explicit
statement of Section 3663’s coverage. It replicated and enlarged that statement when it
enacted Section 3663A six years later.
Sections 3663 and 3663A authorize restitution orders for the benefit of the victims
of the crime of conviction. They augment who may be considered a victim, including
persons other than those directly and proximately harmed as a result of the commission
of an offense. Sections 3663 and 3663A explain that the term victim includes someone
harmed by a scheme, conspiracy, or pattern of activity that is an element of the crime of
conviction, and twice describe the circumstances under which representatives and others
may stand in the shoes of a victim. Finally, sections 3663 and 3663A permit restitution
orders for the benefit of anyone identified in a plea agreement.
Absent either a plea bargain or a scheme, conspiracy, or pattern, there must be a
close, unbroken connection between a defendant’s crime of conviction and the victim’s
harm. A person is a victim for purposes of sections 3663 and 3663A if he or she has been
“directly and proximately harmed” as a consequence of the crime of conviction. A person
has not been directly and proximately harmed if his or her injury is only remotely
attributable to the crime of conviction or attributable at least in part to an intervening
cause unrelated to that offense. The definition of a victim for purposes of restitution under
sections 3663 and 3663A expands when the crime of conviction has as an element a
conspiracy or a scheme or pattern of misconduct. In the case of conspiracy, a defendant
may be compelled to make restitution both for the harm caused by his or her own
misconduct and for the harm of the foreseeable crimes of his coconspirators. As for the
scheme and pattern exception, most federal crimes do not list schemes or patterns among
their elements, although the mail fraud, wire fraud, and racketeering statutes do. Thus,
in such cases, restitution may include the losses incurred from a different episode of the
scheme than the one mentioned in the indictment. Yet the scheme must be the same;
victims entitled to restitution do not include those harmed by an otherwise identical

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scheme but different in time or place than the crime of conviction The courts are divided
of what statutes qualify as “scheme, conspiracy or pattern” laws. Some courts say the
scheme or pattern must be an element of the crime of conviction; it is not enough that the
defendant’s crime involves contrivance or repeated related criminality. Others say it is
enough; the statute proscribing the crime of conviction need not use the words, “scheme,”
or “conspiracy,” or “pattern.”
Although sections 3663 and 3663A employ the same definition of victim, they do not
authorize restitution for the same crimes. The list of crimes for which Section 3663
permits restitution supplements the list for which Section 3663A demands restitution.
Crimes — Section 3663A (Mandatory Restitution)
The mandatory restitution of Section 3663A applies upon conviction for (1) a crime
of violence, as defined in Section 16; (2) an offense against property under title 18, or
under Section 416(a) of the Controlled Substances Act (21 U.S.C. 856(a)), including any
offense committed by fraud or deceit; or (3) an offense described in Section 1365
(relating to tampering with consumer products). Three restrictions apply to the mandatory
restitution authorized for defendants convicted of the predicate offenses listed in Section
3663A(c)(1)(A). First, there must be an identifiable victim who has suffered physical
injury or a pecuniary loss. Second, in the case of the property damage/fraud predicates,
restitution need not be ordered when the number of victims makes an order impractical.
Third, again in the case of property damage/fraud predicates, restitution need not be
ordered when the complexity that restitution would introduce into the sentence process
would represent an undue burden. A few other federal statutes authorize restitution.
Most apply the procedures that govern sections 3663 and 3663A to a narrower range of
crimes but a wider range of losses than sections 3663 and 3663A and their attendant
enforcement procedures might otherwise permit.
Section 3663 (Discretionary Restitution)
Section 3663 authorizes restitution when a defendant has been convicted of a crime
proscribed under Title 18 of the United States Code. It also authorizes restitution when
a defendant is convicted of any of several trafficking offenses under the Controlled
Substances Act, or of any air safety prohibitions. Finally, restitution may be ordered on
the basis of any crime under the laws governing probation and supervisory release
generally. Thus, a federal district court may order restitution as a condition of either
probation or supervised release, even with respect to crimes for which restitution is not
authorized under any of these sections or under sections 3663 or 3663A.
Losses
The losses for which restitution may be ordered depend on the statute under which
restitution is ordered. Sections 3663 and 3663A make separate provisions for property
losses and personal injuries. They call for the return of the property if that provides full
victim restitution, and otherwise for compensatory payments. Section 3663 separately
authorizes restitution for state agencies in certain trafficking cases if there is no other
identifiable victim. Neither section authorizes restitution for a victim’s costs associated
with the investigation and prosecution of the offense in property loss cases.

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Personal Injuries
Sections 3663 and 3663A have parallel provisions governing the restitution for
personal injuries that permit, or in the case of Section 3663A require, compensation for
medical expenses, rehabilitation, lost income, prosecution participation costs, and funeral
expenses in the event the victim is killed. The medical expenses covered by a restitution
order may include those paid on the victim’s behalf by a third party, and may include the
costs of psychiatric and psychological treatment when the victim has suffered a physical
injury. Restitution for lost income extends to both past and future lost income. Both
sections authorize restitution for a victim’s costs associated with the investigation and
prosecution of the offense. Awards for investigative and prosecutorial participation may
include relocation expenses for threatened victims, compensation for wages lost while the
victim assisted in the investigation, and attorneys’ fees related to the child recovery efforts
of the victim of an international parental kidnaping. The sections mention child care,
attendance at judicial proceedings, and other matters that bespeak a human victim, but the
courts have made it clear that other victims are likewise entitled to restitution under the
provisions. Governmental entities may be entitled to restitution awards when they are the
victims of a qualifying offense, but not for the costs of investigating and prosecuting the
offense.
Procedure
Section 3664 supplies the procedure that governs the issuance of restitution orders
authorized in Title 18 of the United States Code in most instances. The procedure begins
upon the conviction of a defendant for a predicate offense, at which point the court directs
the probation service to investigate and prepare a report identifying each victim of the
offense and the extent of their injuries, damages, or losses. The section calls for
prosecutors to provide the probation officer with pertinent information. The officer is
also to ask victims to detail the extent and specifics of their predicate crime-related losses.
The defendant is obliged to give the officer a complete description of his or her financial
situation. The probation officer’s report is presented to the court, the defendant, and the
prosecutor. The court resolves contested restitution issues by a preponderance of the
evidence following a hearing, at which the prosecution bears the burden of establishing
the existence and extent of the victims’ losses and the defendant bears the burden of
questions regarding his or her finances.
Section 3664 is precise when it describes how the court must frame the restitution
order. The order must envision full compensation for the losses of each victim without
regard to the financial circumstances of the defendant. In its calculation of the amount,
manner, and schedule of payment for each victim, however, the court is to consider the
defendant’s assets, anticipated future income, and other financial obligations.
Compensation may be made in lump sum, in-kind payments; installments; or any
combination of such methods of payment. In-kind payments may take the form of a
return of lost property, replacement in-kind or otherwise, or personal services. When the
defendant’s financial condition precludes any alternative, the order may call for nominal
periodic payments. Several courts have emphasized the importance of the court’s close
attention to the restitution payment schedule by prohibiting sentencing courts from
initially ordering that restitution be paid immediately when it is readily apparent that the

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defendant is unable to do so, thereby effectively leaving the task of establishing a payment
schedule to the probation officer or the Bureau of Prisons.
The court may not take into account the fact that a victim may have been
compensated by insurance, forfeiture, civil litigation, or any other alternative form of
compensation of his or her injury, loss, or damage. When the government and the
probation officer have been unable to determine the full extent of victim losses within 10
days prior to sentencing, they are obligated to inform the court. The court is then to set
a date for the final determination of victim losses within 90 days of sentencing. Victims
have a limited option to present claims for restitution relating to undiscovered losses
thereafter.
There has been more than a slight difference of opinion among the lower federal
appellate courts as to how these provisions should be applied, particularly in cases where
the time lines have not been observed. Some courts view the time limits as jurisdictional
and deny lower courts the authority to order restitution beyond the statutory limits. Some
consider them akin to statutes of limitation and permit the time periods to be tolled.
Others see the time limits as a device designed for the benefit of victims, not defendants,
and for them, the failure to honor the time limits warrants no relief as long as the victim
(or the government in the interest of the victim) has no objection and the defendant is
given the opportunity to contest. The courts are likewise divided over the question of
whether the court may order restitution to be paid to the Crime Victims Fund if the victim
refuses to accept it. Should the court determine that more than one defendant contributed
to the victim’s loss, it may apportion restitution accordingly, or it may make the
defendants jointly and severally liable. When defendants are made jointly and severally
liable, each is liable for the entire amount, but the victim is entitled to no more than what
is required to be made whole, regardless of what portion each of the defendants ultimately
contributes. Section 3664(i) declares that when it comes to restitution, the United States
is to be served last. The provision is cited most often to confirm that under the
appropriate circumstances, the government and its departments and agencies may be
considered victims for restitution purposes. Where the government is not a victim,
however, the forfeiture laws may operate to deplete any assets from which restitution
might otherwise have been paid. On the other hand, the defendant is not entitled to have
the restitution award offset by the value of the forfeited property, unless the victim is the
governmental entity for whose benefit the property is confiscated.
Section 3664(j) permits a court to order restitution to third parties who, as insurers
or otherwise, have assumed some or all of the victim’s losses, although in such cases, the
victim must be fully compensated first. Section 3664(j) also supplies the only explicit
offset for the defendant’s restitution obligations. A restitution award may be reduced after
issuance by any amounts that the victim later receives in the course of related federal or
state civil litigation. Nevertheless, the victim, the defendant, or the government may seek
to have a restitution order amended to reflect the defendant’s changed economic
circumstances. The changed economic circumstances envisioned in Section 3664(k) do
not include anticipated future changes nor a later, better-informed understanding of the
defendant’s financial condition at the time of sentence.
There are several means to enforce a restitution order. When restitution is a
condition of probation or supervised release, failure to make restitution may provide the
grounds for revocation. Moreover, a restitution order operates as a lien on the defendant’s

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property that remains in effect for 20 years. The government may also use garnishment
and the other collection mechanisms of the Federal Debt Collection Procedures Act to
enforce a restitution order. A victim may also use a restitution order to secure a lien
against the defendant’s property to ensure the payment of restitution. In addition, the
victims’ rights provisions of 18 U.S.C. 3771 entitle a victim to “full and timely restitution
as provided in law,” a right the section makes enforceable through a liberalized form of
mandamus. In most instances, the victim may also sue the defendant based on the
conduct that led to his conviction and the issuance of the restitution order. During the
course of such civil litigation, the defendant may be precluded from denying the facts that
formed the basis of his conviction.
Abatement
In a criminal law context, the lower federal courts have generally taken the view that
the death of a defendant at any time prior to the determination of his or her final direct
appeal abates all underlying proceedings; appeals are dismissed as moot, convictions are
overturned, indictments are dismissed, and abated convictions cannot be used in related
civil litigation against the estate — all as if the defendant was never criminally charged.
It might seem from this that a restitution order would abate as well, but there is no
consensus among the lower federal courts on the issue.

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