Crime Victims' Rights and Criminal Restitution:
an overview of federal law
(c) 2011, Brenda Grantland, Esq., updated 1/20/2011
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The Crime Victims Rights Act of 2004 ("CVRA")
The CVRA is codified at 18 U.S.C. § 3771. Subsection (a), gives crime victims the following rights:
(1) The right to be reasonably
protected from the accused.
(2) The right to reasonable, accurate, and timely notice of
any public court proceeding, or any parole proceeding, involving the crime or
of any release or escape of the accused.
(3) The right not to be excluded from any such public court
proceeding, unless the court, after receiving clear and convincing evidence,
determines that testimony by the victim would be materially altered if the
victim heard other testimony at that proceeding.
(4) The right to be reasonably heard at any public proceeding
in the district court involving release, plea, sentencing, or any parole
proceeding.
(5) The reasonable right to confer with the attorney for the
Government in the case.
(6) The right to full and timely restitution as provided in
law.
(7) The right to proceedings free from unreasonable delay.
(8) The right to be treated with fairness and with respect
for the victim's dignity and privacy.
These rights apply in all federal criminal cases, to all persons who
qualify as "victims" of the crime. The CVRA defines "victim" as:
a person directly and proximately harmed [1/] as a
result of the commission of a Federal offense [2/] or an offense in the District of
Columbia. In the case of a crime victim who is under 18 years of age,
incompetent, incapacitated, or deceased, the legal guardians of the crime
victim or the representatives of the crime victim's estate, family members, or
any other persons appointed as suitable by the court, may assume the crime
victim's rights under this chapter [this section], but in no event shall the
defendant be named as such guardian or representative.
18 U.S.C. § 3771(e).
The CVRA commands federal prosecutors to use their best efforts to
see that crime victims are provided these rights (§ 3771(c)), and
also requires the court to enforce them (§ 3771(b)(1)), but more
importantly, the CVRA allows victims to assert their rights for
themselves, either personally or through their own lawyers (§
3771(d)(1)). To put some teeth into the statute, Congress gave
victims the right to file motions to enforce their rights [3/], and allowed
victims to obtain appellate review of any denials of their motions
asserting CVRA rights, by filing petitions for mandamus in the court of
appeals (§ 3771(d)(3)).
Many
of the CVRA rights -- such as the
right to be treated with fairness and respect or the "reasonable right
to confer" with the prosecutor -- are somewhat vague and subjective,
and it may be difficult to establish the point at which the court or
prosecutor's conduct crosses the line and violates the statute.
But the rights to notice, and the right to
attend court hearings, and the right to be heard at certain public
hearings are
very concrete rights, and it is fairly easy to demonstrate when those
rights are denied.
These rights work in concert and depend upon each other for full enforcement. For example, in order to exercise the right to be heard at a proceeding, such as sentencing or the change of plea hearing, the crime victim must get reasonable advance notice of the hearing,
as well as notice of his/her rights to participate. If the judge
makes the proceeding non-public, that could violate victims' CVRA right not to be excluded -- and therefore, the need to close the hearing must be balanced against the victims' right to attend.
Restitution
For victims of financial crimes such as fraud schemes, the most
important CVRA right is the right to "full and timely restitution as
provided in law." § 3771(a)(6).
This
provision meshes with
the rights provided victims in the restitution statutes, enabling
victims to litigate in criminal courts and on appeal to enforce their
rights to criminal restitution. The provision also meshes with
other CVRA rights, including the right to notice of the restitution
hearing, the right to confer with the prosecutor with regard to the
government's restitution recommendations, and the right to be heard on
the issue of restitution at sentencing. If the court denies
restitution, or denies one of the CVRA rights to notice or to be heard
with regard to restitution, the victim can file a petition for mandamus
to the court of appeals.
Criminal restitution is a creature
of statute, and the court may not impose restitution except in
accordance with the statutes. "Federal courts cannot order restitution in a criminal case without a
statutory basis." United States v. Pawlinski, 374 F.3d 536, 540 (7th
Cir. 2004); United States v. Lachowski, 405 F.3d 696, 698 (8th Cir. Neb. 2005).
The CVRA restitution provision is not a substantive basis for
restitution. The substantive provisions regarding restitution are
found in separate
restitution statutes. The Mandatory Victim Restitution Act of 1996 ("MVRA"),
codified at 18 U.S.C. §3663A,
mandates restitution for
certain crimes, including fraud. There is also a
discretionary restitution statute applicable to other specified crimes,
the Victim Witness Protection Act ("VWPA"), codified at 18 U.S.C.
§3663. There are also several other less frequently encountered statutes which mandate restitution for certain crimes, and give the court discretion to award restitution as a condition of probation or supervised release.
Procedures applicable to all types
of restitution are codified in § 3664. The federal sentencing guideline applicable to restitution is found at U.S.S.G. § 5E1.1.
The federal statutory provisions governing restitution are detailed below:
Note: the discretionary and mandatory restitution sections have
confusingly similar section numbers -- 18 U.S.C. § 3663 and § 3663A. To
make it easier to keep them straight, we will refer to the
discretionary restitution provision (§3663) as the "VWPA" and the mandatory
statute (§3663A) as "MVRA".
Mandatory restitution under The Mandatory Victim Restitution Act of 1996 ("MVRA") - 18 U.S.C. § 3663A
The MVRA makes restitution mandatory for the following criminal offenses:
- crimes of
violence as defined by 18 U.S.C. § 16;
- offenses against property under
titles 18 (criminal code) or 21 (drug laws)
- - including offenses
committed by "fraud or deceit"; or
- tampering with consumer products (18 U.S.C. § 1365).
18 U.S.C. § 3663A(c)(1). If
the plea agreement does not result in a conviction for one of the above
offenses, the court may award restitution under this section only if
the plea bargain states that an offense listed above gave rise to the
plea agreement. § 3663A(c)(2).
When defendants are convicted of one of the above offenses, the MVRA requires the judge to award restitution in any case "in which an identifiable victim or victims has suffered a
physical injury or pecuniary loss" as a result of the offense. The MVRA defines "victim" as:
a person directly and proximately harmed as a result of the
commission of an offense for which restitution may be ordered
including, in the case of an offense that involves as an element a
scheme, conspiracy, or pattern of criminal activity, any person
directly harmed by the defendant's criminal conduct in the course of
the scheme, conspiracy, or pattern.
18 U.S.C. § 3663A(a)(2). When the MVRA applies the sentencing court is mandated -- "notwithstanding any other provision of law" -- to award
restitution to the directly and proximately harmed victims in the full amount of the losses they suffered as a direct and proximate result of the defendant's crime.
If the MVRA applies and there are identifiable victims, there are only two exceptions under which a
court may decline to award restitution. A sentencing judge may
avoid determining restitution "if
the court finds, from facts on the record, that...":
(A) the number of identifiable victims is so large as to make
restitution impracticable; or
(B) determining complex issues of fact related to the cause or
amount of the victim's losses would complicate or prolong the sentencing
process to a degree that the need to provide restitution to any victim is
outweighed by the burden on the sentencing process.
18 U.S.C. §3663A(c)(3).
How numerous the victims have to be, or how complex the factual issues,
to invoke one of these exceptions are issues still percolating through
the courts. Courts that take seriously
Congress' command that restitution be mandatory in such cases have
tackled complex restitution cases, including some cases involving
tens of thousands of victims. The scope and interpretation of
these two exceptions will be covered in a later article.
The statute makes it clear that the court may conduct evidentiary hearings in determining the identity
of victims and the proper amount of restitution and should do so if issues of fact are in dispute. To ease the burden on the sentencing judge, §
3664(d)(6) allows the restitution evidentiary hearing to be assigned to
a magistrate for proposed findings of fact and conclusions of law.
How the amount of restitution is computed:
In cases involving loss of or damages to property -- if the property is
still in existence, the court can order the property returned to the
victim. § 3663A(b)(1)(A).
If returning the property is not possible, or would be inadequate, the
court computes restitution using the cash-in/cash out method, that is:
the value of the property on the date of the damage, loss or
destruction -- or the date of sentencing, whichever is greater, minus
the value of any part of the property that is returned. § 3663A(b)(1)(B).
In cases involving bodily injury, restitution awards must include the
cost of medical and professional services, physical and occupational
therapy and rehabilitation, and reimbursement of lost income resulting
from the offense. § 3663A(b)(2). If the offense results in the death of the victim the awardmust include the cost of funeral and related services. § 3663A(b)(3).
In all cases, victims are entitled to reimbursement for lost income and
child care, transportation and other expenses incurred while
participating in the investigation or prosecution of the offense, or
attending proceedings related to the offense. § 3663A(b)(4).
Other mandatory restitution statutes:
Restitution is mandatory for the following classes of offenses. *Except as noted below, the "full amount of the victim's losses" is defined as the costs for medical
services, physical, psychiatric or psychological care, physical and
occupational therapy, lost income, attorneys fees, and other costs
incurred by the victim as a proximate
result of the offense. The court may not decline restitution because
of the economic circumstances of the defendant or the fact that the
victim is entitled to compensation from other sources. When the
person victimized is a child, incompetent person or deceased, the
"victim" for purposes of restitution is that person's parent, guardian
or estate.
Mandatory restitution for human trafficking and slavery - 18 U.S.C. § 1593
Restitution is mandatory for defendants convicted of 18 U.S.C.
§§ 1581 through 1592, human trafficking offenses including
slavery, sex trafficking, forced labor and related offenses.
Restitution is for the full amount of the victim's losses as defined above,
and shall include the greater of the income or value to the defendant
of the victim's services or labor as guaranteed under the minimum wage
and overtime laws.
Mandatory restitution for aggravated sexual abuse in special federal maritime or territorial jurisction - 18 U.S.C. § 2248
Defendants convicted of 18 U.S.C. §§ 2241 through 2244 --
including sexual abuse, or aggravated sexual abuse in a federal prison,
institution or facility, sexual abuse of a minor or ward.
Restitution is determined as described above*.
Mandatory restitution for sexual exploitation of children - 18 U.S.C. § 2259
Defendants convicted of 18 U.S.C. §§ 2251 through 2252C,
relating to sexual exploitation of children and child pornography are
subject to mandatory restitution. Restitution is determined as
described above*.
Mandatory restitution for interstate domestic violence and stalking - 18 U.S.C. § 2264
Defendants convicted of 18 U.S.C. §§ 2261 through 2262,
involving domestic violence which crosses state line, stalking
involving interstate travel, etc., are subject to mandatory
restitution. Restitution is determined as described above*.
Mandatory restitution for telemarketing fraud - 18 U.S.C. § 2327
Defendants convicted of 18 U.S.C. §§ 1028, 1029, 1341, 1342,
1343, 1344 or a conspiracy to commit one of those offenses, in
connection with telemarketing. Restitution is determined in the
same manner as restitution under the MVRA.
Mandatory restitution for cleanup of drug laboratories - 21 U.S.C. § 853(q)
Defendants convicted of title 21 offenses relating to the manufacture,
possession, or possession with intent to distribute amphetamihe or
methamphetamine are subject to mandatory restitution to reimburse the
government for the costs incurred cleaning up the manufacturing site,
as well as restitution to victims under the standards of the MVRA.
Discretionary restitution under the Victim Witness Protection Act ("VWPA") - 18 U.S.C. § 3663
When Congress passed the MVRA in 1996, the restitution statute
already in existence, the VWPA, gave judges discretion to award
restitution, but did not mandate it. The public law that created
the MVRA preserved discretionary restitution, but amending the VWPA's
section authorizing discretionary restitution, 18 U.S.C. § 3663,
and its procedural section, 18 U.S.C. § 3664, which is discussed in the next section.
Section 3663(a)(1) now permits, but does not require, restitution for misdemeanor and felony violations of:
- title 18 offenses (which includes all offenses in the general criminal code)
- the following title 21 (drug) offenses: 21 U.S.C. §§ 841, 848(a), 849, 856, 861, and 863
- the following title 49 offenses: 49 U.S.C. §§ 5124, 46312, 46502, and
46504
This statute has a definition of "victim" identical to that in the MVRA:
a person directly and proximately harmed as a result of the
commission of an offense for which restitution may be ordered including,
in the case of an offense that involves as an element a scheme,
conspiracy, or pattern of criminal activity, any person directly harmed
by the defendant's criminal conduct in the course of the scheme,
conspiracy, or pattern. In the case of a victim who is under 18 years of
age, incompetent, incapacitated, or deceased, the legal guardian of the
victim or representative of the victim's estate, another family member,
or any other person appointed as suitable by the court, may assume the
victim's rights under this section, but in no event shall the defendant
be named as such representative or guardian.
18 U.S.C. § 3663(a)(2). Subsection (a)(1)(A)
also permits the judge to award restitution to persons who do not
qualify as victims under § 3663(a)(2), so long as the parties
agree to that in a plea agreement.
Unlike the MVRA, under § 3663, in determining whether to order
restitution, the judge must consider "the financial resources of the
defendant, the financial needs and earning ability of the defendant and
the defendant's dependents, and such other factors as the court deems
appropriate," as well as the losses to each victim resulting from the
offense. 18 U.S.C. § 3663(a)(1)(B).
The amount of VWPA restitution to identifiable victims is computed the same way it is computed under the MVRA. See 18 U.S.C. § 3663(b).
Section 3663(b)(5) also permits the
court to order restitution in services in lieu of money, or restitution
to a person or organization other than the victim. Section § 3663(b)(6)
permits the court to order restitution in the amount of the value of
the victim's time in remedying the harm caused by the offense.
The VWPA even permits restitution for victimless crimes. For
violations of the drug laws -- 21 U.S.C. §§ 841, 848(a), 849,
856, 861, or 863 -- the court may order restitution in the amount of
the public harm caused by the offense, in accordance with guidelines
established by the U.S. Sentencing Commission. Such restitution
cannot exceed the statutory fine, § 3663(c)(2)(B), nor interfere with a forfeiture, § 3663(c)(4), a penalty or a fine, § 3663(c)(5). Section 3663(c)(7)(B)
provides that no community restitution for victimless crimes may be
awarded until the U.S.S.C. promulgates guidelines. In the 2010
Sentencing Guidelines, effective November 1, 2010, U.S.S.G. § 5E1.1
("Restitution") includes a subsection (d) which governs community
restitution for victimless drug crimes, but its language merely tracks
the statute. When community restitution is awarded, 65% of the
total restitution collected is distributed to state crime victim
assistance agency in the state where the offense occurred, and 35% is
paid to the state agency which receives federal substance abuse block
grants. § 3663(c)(3).
Other statutes authorizing discretionary restitution
Even in the absence of a specific
statute authorizing restitution for the specified offense, the court
has discretion to impose restitution as a condition of supervised
release under 18 U.S.C. § 3583(d) [4/], or as a condition of probation under 18 U.S.C. §3563(b)(2) [5/].
Restitution procedures - 18 U.S.C. § 3664
The procedures of 18 U.S.C. § 3664 apply to all of the above restitution statutes -- mandatory and discretionary.
After the defendant is convicted by jury or pleads guilty, the
probation officer assigned to the presentence investigation is required
to obain and include in the presentence report, or a separate
restitution report, "information
sufficient for the court to exercise its discretion in fashioning a restitution
order." § 3664(a). Sixty days before sentencing (or earlier if requested by the probation officer) the prosecutor is required to "provide the probation officer with a listing
of the amounts subject to restitution" "after consulting, to the extent practicable, with all identified victims." § 3664(d)(1).
Prior to submitting the presentence report, the probation officer is
required, "to the extent practicable" to provide notice to all
identified victims of: the offenses for which the defendant was
convicted and "the
amounts subject to restitution submitted to the
probation officer", giving victims the opportunity to submit
information about the amounts of their losses. They must also
give notice of the date, time and place of sentencing,
provide the forms to use in submitting restitution affidavits, and
advise victims of the availability of a lien in the victim's favor
under § 3664(m)(1)(B). § 3664(d)(2).
The presentence report is non-public document shared with the
prosecution and criminal defense attorneys only, and victims cannot get
discovery of it, but the report's list of identified victims and their
losses may be made public or shared with victims. Victims filings
and hearings may be held in camera to protect privacy. § 3664(d)(4).
The court may require additional documentation or conduct an
evidentiary hearing to determine who the direct and proximate victims
are or the amount of their losses. § 3664(d)(4).
The court may delegate the task to a magistrate judge for proposed
findings and recommendations, subject to review by the judge. § 3664(d)(6).
Any disputed issue of fact is resolved by the preponderance of the
evidence, with the government having the burden with regard to the
amount of victims' losses. § 3664(e).
Under the CVRA, victims also have the right to defend their rights to
"full and timely restitution" for themselves, through an attorney or
pro se, so if the prosecutor fails to advocate for restitution, and the
victim takes on the responsibility, the court would probably rule that
the victim had the burden of proof under the last sentence of § 3664(e): "The burden of demonstrating such other matters as the
court deems appropriate shall be upon the party designated by the court as
justice requires."
The court may postpone the restitution determination until after
sentencing, but for no more than 90 days after sentencing. § 3664(d)(5).
The U.S. Supreme Court has held that this 90 day deadline is not
jurisdictional -- the court still retains the power to award
restitution more than 90 days after sentencing. Dolan v. United States, 130 S.Ct. 2533 (2010). A victim who later discovers additional losses has 60 days
after discovery of the additional losses to petition for an amended
restitution order. § 3664(d)(5).
Section 3664(f)(1)(A) requires in
every type of restitution order (mandatory or discretionary), that "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."
The court cannot consider the fact that the victim is entitled to
compensation from other sources in setting the amount of
restitution. § 3664(f)(1)(B).
Once the judge determines the identity of victims and the amounts of
their losses, the court enters a restitution order and establishes a
schedule for paying restitution. In setting this schedule, the
court must consider the financial resources of the defendant, his
projected income, his financial obligations and dependents. § 3664(f)(2).
____________________________
ENDNOTES:
[1/] The Third Circuit has a two-part test
for determining "direct and proximate" victim losses: "First:
Restitution should not be ordered in respect to a loss which would have
occurred regardless of the defendant's conduct. . . . Second:
Even if but for causation is acceptable in theory, limitless but for
causation is not. Restitution should not lie if the conduct
underlying the offense of conviction is too far removed, either
factually or temporally, from the loss." United States v. Atl. States Cast Iron Pipe Co., 612 F. Supp. 2d 453, 541 (D.N.J. 2009), quoting
United States v. Fallon, 470 F.3d 542 (3rd Cir. 2006).
In the Eighth Circuit, victims “directly and proximately” harmed are
defined as persons who “have standing to bring a civil action for the …
injuries proximately caused by … ‘the conduct underlying the offense of
conviction.’” United States v. Chalupnik, 514 F.3d 748, 753 (8th Cir. 2008), quoting Hughey v United States, 495 U.S. 411, 416 (1990).
[2/] In Hughey v United States, 495
U.S. 411, 416 (1990) the Supreme Court, interpreting an earlier
statute, limited liability for restitution to victims directly harmed
by the offense of conviction, as opposed to those who were harmed by other offenses which were not charged, or were charged but dismissed in a plea bargain.
[3/] The victim's right to file motions is implicit in § 3771(d)(3), "Motion for relief and writ of mandamus" which says: "The district
court shall take up and decide any motion asserting a victim's right forthwith."
[4/] 18 U.S.C. § 3583(d) provides, in part:
The court may order, as a further condition of supervised release, to the extent that such condition--
(1)
is reasonably related to the factors set forth in section 3553(a)(1),
(a)(2)(B), (a)(2)(C), and (a)(2)(D) [18 USCS § 3553(a)(1), (a)(2)(B),
(a)(2)(C), and (a)(2)(D)];
(2) involves no greater deprivation of
liberty than is reasonably necessary for the purposes set forth in
section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D) [18 USCS §
3553(a)(2)(B), (a)(2)(C), and (a)(2)(D)]; and
(3) is consistent with any pertinent policy
statements issued by the Sentencing Commission pursuant to 28 U.S.C.
994(a);
any
condition set forth as a discretionary condition of probation in
section 3563(b) [18 USCS § 3563(b)] and any other condition it considers
to be appropriate, provided, however that a condition set forth in
subsection 3563(b)(10) [28 USCS § 3563(b)(10)] shall be imposed only for
a violation of a condition of supervised release in accordance with
section 3583(e)(2) [18 USCS § 3583(e)(2)] and only when facilities are
available.
[5/] 18 U.S.C. § 3563(b) provides in part:
The court may provide, as further conditions of a sentence of probation,
to the extent that such conditions are reasonably related to the
factors set forth in section 3553(a)(1) and (a)(2) [18 USCS § 3553(a)(1)
and (a)(2)] and to the extent that such conditions involve only such
deprivations of liberty or property as are reasonably necessary for the
purposes indicated in section 3553(a)(2) [18 USCS § 3553(a)(2)], that
the defendant--
...
(2)
make restitution to a victim of the offense under section 3556 (but not
subject to the limitation of section 3663(a) or 3663A(c)(1)(A) [18 USCS
§ 3663(a) or 3663A(c)(1)(A)]);...
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