Order Code RS22709
August 22, 2007
Criminal Restitution in the 110th Congress: A
Sketch
Charles Doyle
Senior Specialist
American Law Division
Summary
Restitution legislation in the 110th Congress falls into three categories. Some
proposals, such as the gang crime bills, create new federal crimes or amend specific
existing federal offenses and in doing so include specific restitution provisions particular
to those offenses, e.g., H.R. 880, H.R. 1582, H.R. 1692, S. 456, and S. 990 (gang bills);
and H.R. 871 (spousal support). Other proposals address a particular aspect of the law
such as abatement which limits restitution collection after the defendant’s death (S.
149). Two bills — H.R. 845, the Criminal Restitution Improvement Act, and S. 973, the
Restitution for Victims of Crime Act — make substantial changes in federal restitution
law. The proposals call for three kinds of adjustments: (1) an expansion of offenses for
which restitution may be ordered without recourse to the laws relating to probation and
supervised release; (2) an overhaul of the procedures governing the issuance and
enforcement of restitution orders to afford prosecutors greater enforcement flexibility
without having to seek the approval of the sentencing court; and (3) authority for
preindictment and presentencing restraining orders and other protective measures to
prevent dissipation of assets by those who may subsequently owe restitution. Although
similar in many respects, S. 973 more closely resembles the proposals transmitted by the
Justice Department. The provisions of H.R. 845 also appear as Title V of the Violent
Crime Control Act of 2007 (H.R. 3156/S. 1860).
This is an abridged version of CRS Report RL34139, Criminal Restitution
Proposals in the 110th Congress. Related reports include CRS Report RL34138,
Restitution in Federal Criminal Cases, and CRS Report RS22708, Restitution in
Federal Criminal Cases: A Sketch, by Charles Doyle.
Introduction. Restitution is the act of restoring an individual or entity in whole or
in part to the lost circumstances they might have once enjoyed. In a federal criminal
context, it is the order of a sentencing court directing a defendant to reimburse or
otherwise compensate the victims of his crimes. Restitution is based on the losses suffered
by the victims of a crime. Neither the defendant’s financial condition at the time of
sentencing, nor his future economic prospects figure in the amount of restitution awarded.

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Consequently, in some cases the amount of restitution ordered may exceed what the
defendant can ever reasonably be expected to pay, particularly in the case of mandatory
restitution. Nevertheless, there have been suggestions that in other instances insufficient
restitution has been ordered or collected because of the particularities of restitution law.
Restitution for New Crimes. Existing federal law outlaws the commission of
various federal crimes by street gangs. There have been a number of proposals to amend
or augment the existing federal offense. They include H.R. 880 (Representative Forbes),
H.R. 1582 (Representative Schiff), H.R. 1692 (Representative Pallone), S. 456 (Senator
Feinstein), S. 990 (Senator Menendez). In each instance the proposal permits the courts
to order restitution as part of the sentence imposed for violation of their newly created or
newly amended offenses. Existing federal law outlaws certain failures to pay child support
and requires the court to award restitution upon conviction. H.R. 871 (Representative
Wexler) proposes to outlaw the failure to pay court-ordered spousal property distribution
and requires the court to award restitution upon conviction.
Abatement. Upon the death of a defendant pending appeal the courts treat his
indictment and conviction as if they had never occurred. The case is returned to the lower
federal court with instructions to vacate the conviction and to dismiss the indictment. The
circuit courts are somewhat more divided on the question of whether a restitution order
likewise abates upon the death of the defendant pending appeal. In the twilight of the 109th
Congress, the Senate passed legislation that would have barred abatement of a restitution
order. The bill’s sponsor, Senator Feinstein, reintroduced essentially the same proposal
as S. 149 in the 110th Congress.
H.R. 845 (Mandatory Restitution). H.R. 845 introduced by Representative
Chabot replaces the discretionary and mandatory restitution provisions of sections 3663
and 3663A with a revised Section 3663. Existing law requires restitution for crimes of
violence, maintaining a drug-involved premises, and when prohibited in Title18, fraud
and crimes against property. It permits a court to order restitution for crimes otherwise
proscribed in Title18, as well as for various aviation safety and drug offenses, and as a
condition for probation and supervised release. It does not call for restitution in the case
of most securities offenses, environmental offenses, drug offenses, or most of the other
property crimes outlawed in other titles of the Code. H.R. 845 requires restitution for all
federal offenses that result in qualified losses to qualified victims.
Existing law defines “victims” for purposes of mandatory restitution as (1) those
designated victims in a plea agreement, (2) the estate of deceased victims, (3) those
directly and proximately harmed by a qualifying offense, (4) those harmed by the scheme,
conspiracy, or pattern of criminal activity of a defendant convicted of a qualifying offense
which has as one its elements such a scheme, conspiracy, or pattern of criminal activity,
and (5) in the case of children, the incompetent, incapacitated, or deceased, legal
guardians, family members, and other representatives. H.R. 845 describes five classes of
victims who are entitled to mandatory restitution: (1) Identifiable individuals and entities
who suffer a pecuniary loss proximately caused by the offense; (2) Identifiable individuals
and entities who suffer a pecuniary loss as a consequence of a physical injury to another
proximately caused by the offense; (3) The successors to any such direct or third-party
victims; (4) Anyone the parties agree to in a plea bargain; and (5) Anyone otherwise
provided by law, id.

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Existing law portrays the restitution to be awarded in the case of qualifying offenses
involving the loss or destruction of property in one way (return and/or payment of the lost
value) and that to be awarded in the case of qualifying offenses involving physical injuries
in another (medical expenses, costs of rehabilitation, funeral costs when the victim has
been killed, and the victims’ expenses relating to their participation in the investigation
and prosecution of the qualifying offense). H.R. 845 treats the losses covered by
restitution in much the same way it treats the definition of victim and inventory of
qualifying offenses. It adopts some features of existing law, and it changes others. It
carries forward the language under which restitution orders must include “in the case of
an offense resulting in the death of the victim, an amount equal to the cost of necessary
funeral and related services.” It uses the same language to describe restitution for lost
income, medical expenses, and the cost of rehabilitation — with a difference. Existing
law makes them a matter of mandatory restitution only with respect to offenses involving
physical injuries. H.R. 845 calls for restitution regardless of the nature of the crime. Its
vindication expenses clause runs parallel to existing law, but makes specific allowance
to cover the costs of attorneys other than those employed by the government.
S. 973 (Discretionary Restitution). S. 973’s expansion of authority to order
restitution is far more selective than that of H.R. 845. It amends Section 3663 to permit
a federal court to order restitution following conviction for certain (1) Federal Water
Pollution Control Act offenses; (2) Marine Protection, Research, and Sanctuaries Act
offenses; (3) Act to Prevent Pollution from Ships offenses; (4) Safe Drinking Water Act
offenses; (5) Solid Waste Disposal Act offenses; and (6) Clean Air Act offenses. S. 973
amends the discretionary and mandatory restitution provisions of sections 3663 and
3663A to permit victims to recover related attorney fees other than those of government
attorneys.
Procedural adjustments (H.R. 845). The procedure for issuing a restitution
order is laid out in 18 U.S.C. 3664. Following conviction, a probation officer conducts
an investigation, collects information from the prosecutor, victims and defendant, and
prepares a report for the court which is shared with the parties. The court conducts a
hearing to resolve any questions relating to whether a particular individual is a victim
entitled to restitution, whether a particular loss is one that qualifies for restitution, and the
specifics of the defendant’s ability to pay. Court-issued restitution orders may direct the
defendant to pay in a lump sum, in installments, in-kind or in some combination of the
three. Until full restitution is made, the court may modify its order to reflect any change
in the defendant’s financial circumstances. The Justice Department contends that the role
which the statute assigns to the courts impedes effective collection of restitution and has
recommended amendments.
H.R. 845’s amendments are intended to permit the court to establish a payment
schedule, but to allow the government to formulate one if the court does not. Moreover,
the fact that the court has established a payment schedule does not prevent the
government from supplementing the effort with other collection measures taken without
the need to seek the sentencing court’s approval. H.R. 845 drops the statement now found
in Section 3664(c) that identifies the external provisions of law that govern the
proceedings. Among the provisions now said to govern the proceedings is Rule 32(c)(2)
of the Federal Rules of Criminal Procedure, which states that, “the probation officer who
interviews a defendant as part of a presentence investigation must, on request, give the
defendant’s attorney notice and a reasonable opportunity to attend the interview.”

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Whether H.R. 845 intends or accomplishes a repeal of the Rule for purposes of restitution
interviews is unclear. Defendants continue to have the opportunity and obligation to notify
the court and the government of any change in their financial situation. H.R. 845 adds a
further requirement that victims notify the court if they change their name or mailing
address. It also amends existing law to prolong a defendant’s probationary period and
term of supervised release as long as restitution is still owed, although during the
extension the obligation to pay restitution is the only condition that remains in effect.
Procedural Adjustments (S. 973). Like H.R. 845, more than a few of S. 973’s
amendments have been crafted to provide alternatives to direct involvement of the
sentencing court in restitution enforcement. The approach of S. 973 to judicial scheduling
of installment payments is much like of H.R. 845. The Bureau of Prisons has a program
designed to ensure that federal inmates meet their financial responsibilities which requires
them to have a financial plan to meet those obligations from the money they earn from
prison work assignments if nothing else. The Justice Department’s Analysis claims that
appellate decisions requiring sentencing courts to maintain control over installment
payment plans effectively prohibits the BOP from enforcing final restitution orders
through its long established program.
Under existing law, a prosecutor’s options when enforcing a restitution order include
the inmate financial responsibility program, liens against the defendant’s property, and
garnishment of the defendant’s wages or amounts in his pension plan. A court, however,
may stay execution of a restitution order pending appeal. S. 973 dictates that any stay
pending appeal that curtails a prosecutor’s ability to enforce a restitution order in the
interim must be for good cause stated on the record. It also seems to narrow the court’s
discretion over the protective orders that may accompany a stay. In addition, S. 973 states
that the issuance of such mandatory protective measures should not be construed as a
limitation on the authority of prosecutors to continue their restitution-related
investigations and enforcement efforts.
Under the Federal Rules of Criminal Procedure, the probation officer’s sentencing
report may not include certain medical, confidential or informant-related material. The
Rules also forbid disclosing matters occurring before a federal grand jury, subject to
certain exceptions, some of which require court approval and some of which do not.
Various other statutes prohibit the disclosure of financial information but recognize an
exception for information provided under grand jury subpoena. Those statutes may be
thought to proscribe disclosure beyond the grand jury absent some additional grant of
authority. There are no statutory provisions which specifically proscribe Bureau of Prisons
officials from disclosing to prosecutors information relating to an inmate’s ability to pay
restitution. S. 973 grants the United States Attorneys access without court approval to
financial information on the defendant held by a grand jury, the Probation Office, or the
Bureau of Prisons in order to enforce restitution orders. The Justice Department has
explained that the change is necessary because some district courts insist upon court
approval before allowing prosecutors to examine probation officer reports on a
defendant’s financial condition. They do not explain why explicit authority for access to
grand jury material and Bureau of Prison records is necessary or why court approval
constitutes an obstacle.
S. 973 has several provisions designed to prevent the dissipation of assets following
the issuance of the original restitution order. For instance, every restitution order must

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include an instruction that the defendant is to refrain from any action that would conceal
or dissipate his assets. The court ordering restitution may direct the defendant to bring
crime-related property within the jurisdiction of the court. It may at any time enter a
protective order to ensure the availability of assets for restitution purposes. And it may
craft or modify a restitution order to reflect the fact that the defendant has concealed or
dissipated assets.

H.R. 845/S. 973: Section 3664A (Asset Preservation). H.R. 845 and S. 973
add virtually identical asset preservation components to the restitution procedure in the
form of a new 18 U.S.C. 3664A. The asset preservation features of Section 3664A
contemplate judicial asset freeze orders and other protective measures before conviction,
both before and after indictment. The procedure draws upon, and in part is modeled after,
the protective order features of the criminal forfeiture section of the Controlled
Substances Act. In some ways, the model may seem like a less than perfect fit. The title
to forfeitable property vests in the United States when the confiscation-triggering offense
is committed. Restitution has no comparable feature. At the time of the passage of the
Controlled Substance Act, property used to facilitate the commission of a forfeiture-
triggering offense could be confiscated in a civil proceeding upon a showing of probable
cause. Restitution requires conviction of the property owner; civil forfeiture does not.
On the other hand, proponents might well point out that some of the differences
between forfeiture and restitution argue for greater protective tools in the case of
restitution. The government is the beneficiary of confiscation; the victims of crime are
the beneficiaries of restitution. A victim is likely to feel the loss of restitution more
sharply than the government the loss of forfeitable property. As for the availability of a
civil forfeiture equivalent, proponents might note that under existing law, authorities may
use a search warrant to seize the fruits of crime based on the probable cause. The
protective orders envisioned in H.R. 845 and S. 973 either involve property traceable to
a particular offense or can only be issued in the interest of justice. They are not
administrative commands, but are court-issued protective measures, and come with the
prospect of a judicial hearing to contest their issuance.
The task of assessing the relative strengths and weaknesses of proposed Section
3664A is made more complicated by its occasional want of clarity. Notwithstanding the
Justice Department’s guidance, the text is sometimes perplexing. It seems fairly certain
that the bills mean to establish the following procedure in the case of post-indictment
orders. Courts would be authorized to issue an ex parte protective order upon a probable
cause showing that (1) the defendant had been indicted for an offense for which restitution
might be ordered, (2) that the offense or offenses had resulted in qualified losses to
qualified victims of an approximate amount for which the defendant would be obligated
to make restitution if convicted of the offense or offenses charged, (3) the value of the
property to be restrained or the amount of the bond to be posted did not greatly exceed the
approximate amount of restitution that might be awarded, and (4) (perhaps) the property
is traceable to the offense charged.
A defendant would be entitled to a hearing upon a prima facie showing that the value
of property restrained or the amount of the bond greatly exceeded the amount of the
restitution that could be ordered; or that the law does not authorize restitution for the
offense, victim, or losses claimed in the order; or (if court relies on the traceable property
prong of proposed Section 3664A(a)(1)(A)) that the property restrained is not traceable

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to the offense charged. Even then, a hearing could be granted only if the defendant could
also show by a preponderance of the evidence that the order had or would deprive him of
defense counsel of his choice or deprive him or his family of the necessities of life. If the
defendant is able to meet this burden — or whatever reduced burden due process demands
— he is entitled to a hearing at which the government may contest his challenge. After
which, the court may modify its protective order should it find either (1) a want of
probable cause to believe that the restrained property or at least all of it would be needed
to satisfy any restitution order under the facts of the case or (2) (if the “traceable property”
authority was relied upon) a want of probable cause to believe that the restrained property,
or some of it, is traceable to the offense charged, or (3)(perhaps or at least to the extent
due process requires) that a failure to modify the order would deny the defendant defense
counsel of his choice or would impose an undue hardship upon the defendant or his
family. It seems likely that is what S. 973 and H.R. 845 intend; it is not literally what they
state.
As for preindictment protective orders, the bills declare that applications and orders
are to be governed by 21 U.S.C. 853(e) and proposed Section 3664A. This should
probably be understood to say that proposed Section 3664A governs in cases of conflict
with Section 853(e). Prior to indictment, Section 853(e) requires that the property owner
be given notice and an opportunity for a hearing, unless the government establishes by
probable cause that the property will become unavailable if prior notice is given. The bills
seem to make the initial issuance of the restraining order ex parte in all cases. Such ex
parte restraining orders are temporary, good for only ten days unless extended for cause.
Absent an indictment, the restraining order is only good for ninety days, again unless
extended for cause. Section 3664A does not describe the post-restraint hearing to be held
in preindictment cases. Section 853(e)(1)(B) indicates that upon application of the United
States, the court may enter protective orders to preserve the availability of property which
the government asserts is subject to criminal forfeiture prior to indictment if it finds the
government is likely to prevail on the issue and the government’s need for availability
outweighs any hardship of the property owner. Third parties may move for modification
of a restraining order on the grounds of hardship and less onerous alternatives. At least
on the face of things, third parties may not move to have a restraining order modified on
the grounds that the property restrained belongs to them rather than to the defendant,
although they may do so at the conclusion of the criminal case.
H.R. 845/S 973 (Anti-Crime Injunction Expansion). Traditionally, the federal
courts will not enjoin the commission of a crime unless expressly authorized to do so by
statute. As part of the Comprehensive Crime Control Act of 1984, Congress enacted 18
U.S.C. 1345 which authorized the federal courts to enjoin the commission of various fraud
offenses and to freeze property derived from some of these offenses, namely, banking law
or health care offenses. H.R. 845 and S. 973 each enlarge Section 1345 to authorize both
injunctions and freeze orders relating to any federal offenses for which restitution might
be ordered. Their reach is somewhat different since their view of offenses for which
restitution may be ordered is different. For H.R. 845, it is any federal offense which
proximately causes another pecuniary loss. For S. 973, it is the mandatory restitution
crimes, that is, any federal crime of violence, property damage, fraud, and product
tampering, as well as the discretionary restitution crimes, that is, any other crime
proscribed in Title18, the various aircraft safety and drug offenses, and the environmental
crimes that S. 973 adds to the restitution list. Given the wide-ranging freeze orders that the
bills make available elsewhere, the freeze order component of their amendment of Section
1345 may be considered unnecessary.

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