(c) 2011, Brenda Grantland, Esq., updated 7/24/2014
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The Crime Victims Rights Act of 2004 (“CVRA”)
(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.
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.
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:
- Mandatory Victim Restitution Act – 18 U.S.C. § 3663A
- Other mandatory restitution statutes
- (Discretionary) Victim Witness Protection Act – 18 U.S.C. § 3663
- Other discretionary restitution statutes
- Restitution procedures – 18 U.S.C. § 3664
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 — “notwithstandingany other provision of law” — to award restitution to the directly and proximately harmed victims inthe 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 “theamounts 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).
[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)]);…