Federal Criminal Restitution: Factors to Consider for a Potential Expansion of Federal Courts' Authority to Order Restitution

Victims of federal crimes may be compensated for their losses through criminal proceedings when federal courts order restitution during a defendant's sentencing. Federal law dictates the crimes for which restitution is mandatory versus discretionary and what types of losses may be compensated. Federal prosecutors and Department of Justice officials are responsible for proving and litigating issues related to victims' losses for restitution orders, enforcing orders of restitution, and collecting criminal debt, including unpaid restitution.

The Justice for All Reauthorization Act of 2016, Pub. L. No. 114-324, contains a provision for GAO to conduct a review on the factors that should be considered when broadening restitution provisions. This report describes factors stakeholders believe should be considered for a potential expansion of federal courts' authority to award restitution.

To gather information on factors, GAO interviewed a non-generalizable group of stakeholders knowledgeable about the restitution process, including individuals and entities representing federal judges and court officials, federal prosecutors and Department of Justice officials, victims, and defendants and their counsel. GAO also reviewed relevant federal laws, legal cases, agency documentation, summary data on orders for restitution from fiscal years 1996 through 2016, and the amount of outstanding restitution debt owed in federal cases as of the end of fiscal year 2016.

Federal courts have authority to award restitution for authorized losses to eligible victims. Generally, victims are those directly and proximately harmed as a result of a defendant's offense of conviction and they may be awarded compensation for their actual or “out-of-pocket” losses. Provisions for the potential expansion of restitution contained in the Justice for All Reauthorization Act of 2016 that GAO reviewed could allow for courts to award restitution to additional victims and for a greater scope of losses. Stakeholders GAO interviewed identified various factors to consider related to these potential expansion provisions, for example:

Restitution for related conduct and no proximate cause requirement . A factor stakeholders stated should be considered in potentially allowing restitution for conduct that is broader than the offense of conviction was that it could be a violation of a defendant's constitutional right to due process because restitution could be awarded for conduct for which the defendant's guilt was not established. In addition, they said it could lead to increased complexity to determine victim losses, which could create challenges for federal prosecutors and could result in less restitution being awarded. For a potential expansion of restitution to compensate harm that was not proximately caused by the defendant (i.e., harm that was not reasonably foreseeable as a result of the offense) stakeholders said factors that should be considered include that the current proximate harm requirement does not present challenges and that such an expansion could lead to additional sentencing-related hearings and litigation.

Restitution to restore victims to their position had the offense not been committed . Stakeholders said this provision is already a goal of federal restitution, but that a potential expansion could allow judges more discretion to order restitution for victim losses not specified by statute, which could help restore the victim to his or her pre-offense condition.

Restitution for any injury, harm, or loss, including emotional distress . A factor stakeholders identified in potentially expanding restitution to cover intangible losses, including emotional distress, included that it could increase the complexity of the restitution process because these are not easily quantified losses. Relatedly, stakeholders said that the suitability of criminal versus civil proceedings should be considered because the civil system, through which crime victims may seek compensation at their own expense, is set up to handle these issues and losses, whereas officials involved in criminal cases lack the specialized skills to determine these kinds of losses.

Stakeholders GAO interviewed identified additional factors related to the potential broadening of courts' authority to order restitution generally; for example, they told GAO that increased restitution debt and collectability challenges should be considered. According to the Department of Justice, the amount of outstanding restitution debt owed in federal cases as of the end of fiscal year 2016 was $110.2 billion. Stakeholders stated that defendants often lack the financial resources to pay restitution and adding to the uncollected restitution debt through a potential expansion of authority could lead to further collection challenges.

The impact of crime on an individual victim often has significant  emotional, psychological, physical, financial, and social consequences.  The primary goal of federal criminal restitution is remedial or  compensatory and federal courts may order defendants to pay restitution  to compensate victims for their losses as authorized by statute during  sentencing. Federal law dictates the crimes for which restitution is  mandatory versus discretionary and what types of harms may be  compensated. For example, federal courts are required to order  restitution following conviction for crimes such as stalking, arson, sexual  exploitation of children, and fraud as well as all other crimes of violence  and property crimes. In addition, federal courts are permitted, but not  required, to order victim restitution related to other offenses in Title 18 of  the U.S. Code—for example, conspiracies to commit tax evasion and  violate civil rights—and various controlled substance offenses under Title  21, among others. Further, federal courts may also order restitution to  the extent agreed to by the parties in a plea agreement, including to  persons other than the victim. If no statutory authority for ordering  restitution is applicable to a specific offense, the court may nevertheless  order restitution to the victim, solely as a condition of probation or  supervised release. The types of compensable expenses specified in  statute include, for example, the costs of medical and other services  related to physical, psychiatric, and psychological care, and  reimbursement for lost income as a result of the offense, among other  enumerated losses.

The Justice for All Reauthorization Act of 2016 contains a provision for us  to conduct a review and, within 180 days, report on the factors that should  be considered when broadening restitution provisions, including four  areas. The four expansion areas are as follows: (1) to apply to victims  who have suffered harm, injury, or loss that would not have occurred but  for the defendant’s related conduct; (2) in the case of an offense resulting  in the victim’s death, to allow the court to use its discretion to award the  income lost by the victim’s surviving family members or estate as a result  of the victim’s death; (3) to require that the defendant pay to the victim an  amount determined by the court to restore the victim to the position he or  she would have been in had the defendant not committed the offense;  and (4) to require the defendant compensate the victim for any injury,  harm, or loss, including emotional distress, that occurred as a result of the  offense. See appendix I for additional information on these four  expansion areas to broaden courts’ authority to order restitution. To meet  the 180 day reporting requirement, we provided a briefing to your staff in  June 2017. This report transmits the final results of our review.  Specifically, this report describes the factors reported by stakeholders we  interviewed that should be considered for a potential expansion of federal  courts’ authority to award restitution in these four specific areas.

To gather information on factors related to expanding federal courts’  authority to order restitution, we reviewed the process of ordering  restitution to victims in federal criminal proceedings, and identified four  key groups: federal judges and court officials (including clerks and  probation officers), prosecutors and Department of Justice (DOJ) officials,  victims, and defendants and their counsel. In order to obtain the  perspectives of representatives from each of these key groups, we  interviewed stakeholders, including officials from the federal judiciary and  DOJ, representatives from associations, and four individuals  knowledgeable about the federal restitution process referred to us by  other officials. Stakeholders we interviewed included at least two  individuals or entities representing federal judges and court officials,  prosecutors and DOJ officials, victims, and defendants and their counsel.  We provided stakeholders with a summary of their opinions in order to  ensure we correctly captured their views. Table 1 lists those that we  interviewed and their affiliation with the federal restitution process. While  the information gathered from our interviews is not generalizable to all  stakeholders in the federal restitution process, it does provide insights  into factors associated with expanding the authority of the federal courts  to order restitution from key stakeholder groups in the restitution  process.

We also reviewed relevant federal laws and legislative history, legal  cases, agency documentation, our past work on restitution,  Congressional Research Service reports, and secondary legal sources on  restitution, including law review articles and publications. In addition, we  reviewed summary data on orders for restitution from the U.S. Sentencing  Commission (USSC) from fiscal years 1996 through 2016, a time period  starting after enactment of the Mandatory Victims Restitution Act of 1996  (MVRA) through the most recent fiscal year for which complete data  were available. We also reviewed summary data from DOJ on the total  amount of outstanding restitution debt owed in federal cases reported for  fiscal year 2016, the most recent fiscal year for which complete data are  available. To assess the reliability of the data, we reviewed agency  documents and interviewed responsible officials to understand their  methods for collecting, reporting, and validating the data. We found the  data to be sufficiently reliable for the purposes of our report.

We conducted this performance audit from January 2017 to October 2017  in accordance with generally accepted government auditing standards.  Those standards require that we plan and perform the audit to obtain  sufficient, appropriate evidence to provide a reasonable basis for our  findings and conclusions based on our audit objectives. We believe that  the evidence obtained provides a reasonable basis for our findings based  on our audit objectives.

Stakeholders Involved in the Federal Restitution Process

Victims of federal crimes may be compensated for their losses through  criminal proceedings when a federal court orders restitution pursuant to  statute. Restitution is part of the sentencing process for federal offenders  and there are four key groups of stakeholders involved:

Judges and court officials. The federal judiciary consists of a  system of courts that has the critical responsibility of ensuring the fair  and swift administration of justice in the United States and handles all  federal civil, criminal, and bankruptcy cases and reviews of federal  administrative agency cases throughout the country. The federal  courts have various responsibilities in the restitution process. Federal  judges are responsible for ordering the proper amount and type of  restitution, including payment schedules and modifications. Federal  probation officers are responsible for the presentence report, which  must include information for the court to use in fashioning a restitution  order, including, among other things, a complete accounting of the  losses to each victim and information about the economic  circumstances of each defendant. Following a defendant’s  sentencing and the imposition of restitution, probation officers  supervise offenders to ensure compliance with orders for restitution,  including conducting ongoing financial investigations, supporting U.S.  Attorneys’ Offices in the collection and enforcement of restitution  orders, notifying the federal court of an offender’s failure to pay  outstanding restitution, and making recommendations to amend  orders based on changes in an offender’s ability to pay. Clerks of  federal courts are responsible for receipting and disbursing restitution  payments and notifying DOJ of such. In addition, the Director of the  Administrative Office of the U.S. Courts has statutory responsibilities  related to the restitution process, including establishing procedures  and mechanisms within the judicial branch for processing fines,  restitution, forfeitures of bail bonds or collateral, and assessments.  The Judicial Conference of the United States, a body of 27 judges  over which the Chief Justice of the United States presides, is the  judiciary’s principal policymaking body and operates through a  network of committees created to address and advise on a wide  variety of subjects such as budget, criminal law, and court  administration. Given the role of the judiciary in the restitution  process, the Judicial Conference has taken policy positions on various  restitution-related issues and has supported various legislative  proposals to improve the process.

Prosecutors and DOJ officials. DOJ officials are responsible for  prosecuting federal offenses, identifying victims of crime and  informing them of restitution to which they may be entitled, identifying  victim losses and harms that are subject to restitution after consulting  with victims and providing that information to probation officers,  demonstrating the amount of loss sustained by the victim, enforcing  orders of restitution, and collecting criminal debt, including unpaid  restitution. Various entities and officials within DOJ are responsible  for these activities, including federal prosecutors in the Criminal  Division and the U.S. Attorneys’ Offices, and their respective Financial  Litigation Units.

Victims. A federal crime victim is a person directly and proximately  harmed as the result of a federal offense. Federal crime victims are  entitled to full and timely restitution as provided in law. Victims may  provide information to prosecutors, probation officers, and to the court  about their losses and have a right to be heard at sentencing, but are  not required to participate in any phase of the restitution  proceedings.

Defendants and their counsel. Defendants who commit federal  crimes where an identifiable victim suffered a physical injury or  monetary loss are generally required to pay restitution. Defendants  are required to submit information about their financial resources and  the financial needs and earning ability of their dependents to the court  and have the burden of demonstrating these resources and needs in  any restitution proceedings. Defendants are generally represented  by counsel in criminal proceedings and according to the judiciary  approximately 90 percent qualify for court-appointed counsel under  the Criminal Justice Act because they are financially unable to retain  counsel in federal criminal proceedings. Court-appointed counsel is  provided by Federal Defender Organizations and panel attorneys. A  defendant may be convicted pursuant to plea agreement with the  government or after a trial; more than 90 percent of defendants plead  guilty rather than go to trial. A defendant is referred to as an offender  following conviction of an offense.

Restitution is only available to victims and for harms as statutorily  authorized. Congress passed the MVRA in 1996, which substantially  revised the restitution process. The legislative history reflects the  balancing of competing interests—including ensuring that the loss to  crime victims is recognized, that they receive the restitution that they are  due, and also that the offender realizes the damages caused by the  offense and pays the debt owed to the victim as well to society. As  provided in the legislative history, one of the ways that the law sought to  balance the application of mandatory restitution was by limiting it to the  instances where a named identifiable victim suffered a physical injury or  monetary loss as a direct and proximate result of the defendant’s offense  of conviction. This means that the victim would not have been harmed  “but for” the conduct underlying the offense of conviction and also that the  harm was proximately caused by the conduct. Proximately caused means  that the causal nexus between the conduct and the loss is not too  attenuated either factually or temporally. As such, a defendant is not held  liable for downstream effects of an act where there were additional,  intervening causes not sufficiently related to the offense. For example, a  rapist would not be held responsible for the death of a hospitalized rape  victim who died in a hospital fire. In addition, the loss caused by the  defendant’s conduct underlying the offense of conviction establishes the  outer limits of the restitution order. This means that harms caused by  the defendant’s conduct that were related to, but outside the scope of, the  crime of conviction cannot be compensated through restitution. For  example, a defendant who was convicted of illegally possessing a firearm  but acquitted of using the firearm to shoot someone would not be liable  for restitution for medical costs for the shooting victim.

The restitution statutes specify the types of harm that may be  compensated, and federal case law interpreting these statutes provides  guidance to courts when ordering restitution. For example, when a crime  results in bodily injury to a victim, compensable expenses include the  costs of medical and other services related to physical, psychiatric, and  psychological care; costs for necessary physical and occupational  therapy and rehabilitation; and reimbursement for lost income as a result  of the offense, among other enumerated losses. Courts have also  ordered restitution for a victim’s actual losses that were proximately  caused by the defendant’s conduct even when not explicitly listed in  statute. When restitution is ordered by the court, it is to be in the full  amount of each victim’s losses without consideration of the economic circumstances of the defendant. During a defendant’s sentencing,  additional hearings may be held to examine losses to victims for  restitution and prosecutors are responsible for proving and litigating  issues related to victims’ losses. Restitution may be imposed by the  federal courts up to 90 days after sentencing if additional time is needed  by the court to locate victims and calculate losses. In some cases,  courts can decline to order restitution, such as when the court determines  that fashioning an order of restitution would complicate or prolong the  sentencing process so much that the need to provide restitution is  outweighed by the burden on the sentencing process.

Separate from criminal restitution, victims may seek compensation from  the offender by pursuing litigation at their own expense through a civil  proceeding in a federal, state, or local court. In the United States,  criminal and civil proceedings are separate legal systems subject to  different laws, standards, and rules of procedure. The types of harms for  which a victim may receive compensation differ in a civil proceeding. For  example, federal criminal courts may order restitution to reimburse a  victim for medical expenses, but cannot order compensation for pain and  suffering caused by a crime. However, a victim may seek compensation  for pain and suffering by filing a civil action against the defendant, as well  as for other types of damages that are not available through restitution.  Other types of civil remedies not compensable as criminal restitution  include intended harm, punitive damages, breach of contract, and  disgorgement of ill-gotten gains, among others. Figure 1 below outlines  the steps taken for compensation of victims of federal crimes through  federal criminal restitution and civil proceedings.

According to USSC data for fiscal years 1996 through 2016, the  percentage of offenders ordered to pay restitution by federal courts has  remained fairly steady. From fiscal years 1996 through 2016, an average  of 15 percent of individual offenders and 32 percent of organizational  offenders annually were ordered to pay restitution by the federal courts  (see fig. 2). For more information on the restitution imposed by the  federal courts from fiscal years 1996 through 2016, see appendix II.

We have previously reported on issues related to the collection of federal  restitution and currently have ongoing work on DOJ’s collection of  restitution pursuant to the Justice for All Reauthorization Act of 2016.  According to data DOJ provided to us, the total outstanding restitution  debt owed in federal cases as of the end of fiscal year 2016 was $110.2  billion. DOJ, through its U.S. Attorneys’ Offices’ Financial Litigation Units,  is responsible for collecting restitution debt from offenders. This collection  typically begins after offenders are sentenced and ordered to pay  restitution and includes enforcement actions such as filing garnishments  and liens. We noted in our 2001 and 2004 reports that collection of  outstanding restitution debt is inherently difficult due to a number of  factors, such as offenders who may be incarcerated or have minimal  earning capacity and the MVRA requirement that the assessment of  restitution be based on actual loss and not on an offender’s ability to  pay. In 2005, we reported that court-ordered restitution amounts far  exceed likely collections for crime victims in selected financial fraud  cases. Specifically, we found that these offenders, who had either been  high-ranking officials of companies or operated their own businesses,  pleaded guilty to crimes for which the courts ordered restitution totaling  about $568 million to victims. As of the completion of our fieldwork, which  was up to 8 years after the offenders’ sentencing, court records showed  that amounts collected for the victims in these cases totaled only about  $40 million, or about 7 percent of the ordered restitution.

Stakeholders Identified Various Factors Related to the Potential Expansion of Federal Courts’ Authority to Order Restitution

Stakeholders we interviewed identified various factors related to the  potential expansion of federal courts’ authority to order restitution in the  four areas listed in the Justice for All Reauthorization Act of 2016: (1) to  apply to victims who have suffered harm, injury, or loss that would not  have occurred but for the defendant’s related conduct; (2) in the case of  an offense resulting in the victim’s death, to allow the court to use its  discretion to award the income lost by the victim’s surviving family  members or estate as a result of the victim’s death; (3) to require that the  defendant pay to the victim an amount determined by the court to restore  the victim to the position he or she would have been in had the defendant  not committed the offense; and (4) to require the defendant compensate  the victim for any injury, harm, or loss, including emotional distress, that  occurred as a result of the offense. Stakeholders also identified additional  factors to consider, beyond the ones identified for the four provisions  above, for potential broadening of courts’ authority to order restitution  generally. For a summary of the provisions and factors cited by  stakeholders, see appendix I.

Factors to Consider in a Potential Expansion of Restitution Authority if it were to Include a Defendant’s Related Conduct and Eliminate the Proximate Cause Requirement

Federal courts have the authority to order defendants to pay restitution for  a victim’s losses that resulted from the defendant’s conduct underlying  the offense of conviction. However, at times, a defendant’s related  conduct can be broader than the offense of conviction and can include  criminal conduct for which the defendant’s guilt was not established either  by trial or plea agreement with the government. For example, in a case  before the Fourth Circuit where restitution was not allowed for conduct  that was broader than the offense of conviction, the government asserted  that the defendant was the ringleader of a nationwide pickpocketing ring  and submitted a list of victims for restitution that included five financial  institutions and four individuals who had suffered losses. However,  because the defendant had pleaded guilty to, and was convicted for,  fraudulent use of a credit card related to one individual on one date—and  the defendant’s offense did not involve as an element a scheme,  conspiracy, or pattern—the court determined that restitution was not  proper for the additional victims because they were not harmed by the  conduct underlying the offense of conviction. On the other hand, when a  defendant has been convicted of an offense that involves as an element a  scheme, conspiracy, or pattern, the court may order restitution for direct  harm caused by that scheme, conspiracy, or pattern. For example, in  another case involving credit card fraud, because the defendant pleaded  guilty to and was convicted of conspiracy to traffic in counterfeit credit  cards—in contrast to the previous case where the defendant was  convicted of only one fraudulent use—the Eleventh Circuit held that the  sentencing court could order a defendant to pay restitution for losses from  additional credit card fraud that were to advance the conspiracy.

Stakeholders we interviewed identified the following factors to consider if  federal courts’ authority were to be broadened to allow a defendant’s  related conduct to be included in an order for restitution:

Constitutional issues. Eight of 10 stakeholders we spoke with  identified potential constitutional issues if the federal courts could  order restitution for a defendant’s related conduct. For example, two  stakeholders representing defendants and an association  representing federal prosecutors told us that including a defendant’s  related conduct in orders for restitution could result in potential  violations of a defendant’s rights under the Fifth Amendment’s Due  Process Clause, which provides that no person shall be deprived of  life, liberty, or property without due process of law. This was also a  concern noted in the legislative history of the MVRA, and an  individual knowledgeable about restitution we interviewed noted that  the Supreme Court has also suggested that due process could be a  concern if the court were to order federal criminal restitution beyond  the conduct underlying the conviction.

Increased complexity to determine losses. Four of 10 stakeholders  we spoke with stated that if the authority of federal courts to order  restitution were broadened to allow inclusion of harms for a  defendant’s related conduct, there would be increased complexity to  determine losses for restitution. For example, DOJ officials told us that  inclusion of a defendant’s related conduct would allow restitution to be  open to a larger pool of potential victims, and identifying and  calculating losses for all victims with a nexus to the offense of  conviction could become an impossible task. An association  representing federal prosecutors stated that this increased complexity  could have the effect of federal courts ordering less restitution through  the exception for complex cases, which would negatively impact  victims.

DOJ’s practices for plea bargaining. In contrast, two individuals we  spoke with who represent victims stated that prosecutors could more  consistently follow DOJ’s guidelines to include a defendant’s related  conduct in plea agreements without expanding federal courts’  authority to order restitution. DOJ guidelines, which are based on  statutory direction, provide that prosecutors must consider requesting  full restitution to all victims for all charges contained in the indictment,  without regard to the counts to which the defendant actually pleaded  guilty. In other words, when DOJ and the defendant agree to certain  terms as part of a plea agreement in which the defendant pleads  guilty to one or more charged offenses, or lesser or related offenses,  prosecutors must consider requesting the defendant pay restitution for  all of the charges, not just the ones to which the defendant is pleading  guilty. As a result, federal courts may order restitution pursuant to  the plea agreement for losses sustained by crime victims for related  conduct or criminal conduct that is not part of the offense of  conviction.

Federal courts currently have the authority to order an offender to pay  restitution to victims who have suffered harms as a direct and proximate  consequence of the crime of conviction. This means that the harm must  have been not only caused by the offense, as a matter of fact, but also  that it was reasonably foreseeable as a result of the offense. For  example, courts have allowed damage caused by the escape from a  robbery—such as damage to police cars hit during a car chase—to be  compensable as restitution because the flight was casually related to the  bank robbery. Although 5 of 10 stakeholders stated that the proximate  harm requirement does not generally present challenges related to  federal courts’ authority to order restitution, stakeholders identified  additional factors to consider if the federal courts’ authority were to be  expanded to eliminate the proximate cause requirement:

Additional sentencing-related hearings and litigation. Three of 10  stakeholders we interviewed stated that eliminating the proximate  harm requirement could result in prolonged sentencing for defendants  due to additional sentencing-related hearings and litigation. For  example, judiciary officials and an association representing federal  prosecutors stated that if federal courts’ authority to order restitution  were expanded to eliminate the proximate harm requirement, more  litigation would be required during sentencing to examine harms to  victims and to determine how losses related to the offense of  conviction.

Plea bargaining could be affected. Two of 10 stakeholders we  interviewed stated that eliminating the proximate harm requirement  would impact plea bargaining between defendants and DOJ. For  example, an individual knowledgeable about federal restitution stated  that eliminating proximate harm would hinder plea bargaining as  during plea agreement negotiations a defendant would no longer have  a sense of how much federal criminal restitution could be ordered. At  the time the MVRA was passed, Congress also recognized the central  role of plea bargaining in the federal criminal justice system with the  legislative history of the MVRA noting the intent that the legislation not  impair the role of plea bargaining.

Factors to Consider in the Potential Expansion of Restitution to Include Income Lost by Deceased Victims and Their Family Members

In cases involving the death of a crime victim, federal courts may order  restitution for losses to be paid to a deceased crime victim’s surviving  family members or estate, including for funeral expenses, as applicable.  Further, according to 6 of 10 stakeholders we interviewed, federal courts  currently have the authority to order compensation for future lost income  of a deceased crime victim’s family member or estate due to precedent  established in case law. For example, the Tenth Circuit held that  restitution for the future lost income of a three-month-old victim of  voluntary manslaughter was not precluded by the MVRA; thus a court  may exercise its discretion in declining to grant an award, or, as it did in  this case, undertake such proceedings. In a Ninth Circuit case, the court  held that “restitution for future lost income may be ordered under the  MVRA so long as it is not based upon speculation, but is reasonably  calculable,” and returned the case to the district court to redetermine the  amount of restitution to be awarded.

Stakeholders we interviewed also identified the following factors to  consider if federal courts’ authority were to be expanded to include  compensation for the future lost income of a deceased crime victim and to  compensate the deceased victim’s surviving family members for their lost  income as a result of the victim’s death:  Increased victim compensation awards. Four of 10 stakeholders  we interviewed stated that expanding federal courts’ authority to  include compensation for future lost income of a deceased crime  victim could result in more compensation awarded through restitution.  For example, three stakeholders representing victims stated if this  provision were specified or made explicit in statute, it would be more  likely that federal courts would order compensation for the future lost  income of a deceased crime victim. One of the stakeholders added  that having such loss specified and enumerated in restitution statutes  would ensure it is considered during the restitution process and is less  likely to be challenged during appeal. Further, another stakeholder  representing victims stated that including the surviving family  members’ lost income in a restitution order could allow for  compensation of those family members who lost income prior to a  victim’s death, such as in cases where those family members  provided care to a victim prior to the victim’s death.

Complexity of calculation and need for experts. Three of 10  stakeholders we interviewed stated that determining a deceased  crime victim’s future and family members’ lost income would add  complexity to the restitution process. For example, an association  representing federal prosecutors stated that it would be difficult for  federal probation officers and prosecutors to determine the amount of  future lost income for deceased victims as that area of specialization  is currently in civil law. In addition, DOJ officials stated that the  complexity and need for experts to make these specialized  calculations could increase the cost of prosecution given the  government’s burden to prove victim losses.

Suitability of criminal versus civil proceedings. Three of 10  stakeholders we interviewed stated that compensation for a deceased  crime victim’s future and family members’ lost income is more  appropriate for litigation through civil proceedings rather than  combining or merging such litigation in a federal criminal proceeding.  For example, an association representing defendants stated that  federal criminal proceedings are not suitable venues to fairly vet and  litigate this type of victim issue. This stakeholder further stated that  issues of this type are routinely litigated vigorously in civil proceedings  and involve extensive discovery practices, such as taking of  depositions, exchanges of documents, and assessments by  competing experts. An association representing federal prosecutors  additionally noted that federal prosecutors are not well positioned to  handle typical civil losses in criminal trials.

Sentencing of defendants could be prolonged. Two of 10  stakeholders we interviewed stated that including a deceased crime  victim’s future and family members’ lost income in an order for  restitution could result in a defendant’s sentencing being prolonged.  For example, judiciary officials stated that the sentencing of  defendants could take more time due to the need for multiple hearings  to examine losses and calculate a deceased crime victim’s future lost  income.

Collectability of debt due to these offenders’ ability to pay. Two of  10 stakeholders stated that the potential collectability of restitution  from offenders for a deceased crime victim’s future and family  members’ lost income should be considered. For example, an  association representing federal prosecutors stated that these  offenders are most likely to be incarcerated with the least ability to  pay. As a result, the amount of resources needed to order restitution  compared to collectability of the debt for a deceased crime victim’s  future lost income should be considered. Further, according to that  stakeholder, resources—such as prosecutorial expertise, money to  hire experts, judicial resources like probation officers—need to be  weighed against the collectability of the debt. This issue was also  described in the legislative history of the MVRA:    significant  number  of  defendants  required  to  pay  restitution…will  be  indigent  …  many…may  also  be  sentenced to  prison  terms  as  well,  making  it  unlikely  that  they  will  be  able  to  make  significant  payments…  At  the  same time, these factors do not obviate the victim’s right to  restitution  or the  need that  defendants  be  ordered  to  pay  restitution.

Factors to Consider in the Potential Expansion of Restitution to Restore the Victim to His or Her Position Had the Offense Not Been Committed

According to 6 of 10 stakeholders we interviewed, the provision “to  require that the defendant pay to the victim an amount determined by the  court to restore the victim to the position he or she would have been in  had the defendant not committed the offense” is already the goal of  federal restitution. These stakeholders stated that this is established in  case law and is not an expansion of federal courts’ current authority.  Other stakeholders we interviewed identified the following factor to  consider if federal courts’ authority were to be expanded to include the  provision “to require that the defendant pay to the victim an amount  determined by the court to restore the victim to the position he or she  would have been in had the defendant not committed the offense”:

Expansion of authority to include general restitution. Three of 10  stakeholders we interviewed stated that the provision would expand  federal courts’ authority to order restitution by allowing general  restitution, meaning courts would have more discretion to determine  awards for all harms that victims suffered in order to restore the victim  to his or her pre-offense condition. Further, an association  representing victims stated that federal courts’ authority to order  restitution is listed as elements or categories of losses. For example,  losses such as the cost of necessary physical and occupational  therapy and rehabilitation, and necessary funeral and related  services, among others. This association explained that by including a  provision for general restitution, the courts would be able to order  restitution to victims for any losses outside of those categories, which  would function as a catchall for all victim harm.

Factors to Consider in the Potential Expansion of Restitution to Include Any Injury, Harm, or Loss, Including Emotional Distress That Occurred as a Result of an Offense

Federal courts may order restitution for actual losses—in other words,  these must be tangible or “out-of-pocket” losses, and they must be  supported by the record. This includes, for example, reimbursement of  medical expenses for bodily injuries resulting from the victimizing offense.  However, federal courts are not authorized to order restitution for losses  such as pain and suffering and emotional distress to crime victims. For  example, in a case where the defendant was convicted of committing a  brutal hate crime against the victim, leaving him with severe physical  injuries and depression, among other harms, the sentencing court  acknowledged that it did not have authority to award restitution for pain  and suffering and noted that the victim would be allowed to pursue civil  remedies. Stakeholders we interviewed identified the following factors to  consider if federal courts’ authority were expanded to allow any injury,  harm, or loss, including emotional distress, to be included in an order for  restitution:

Suitability of criminal versus civil proceedings. Five of 10  stakeholders we interviewed stated that including compensation to  victims for any injury, harm, or loss, including emotional distress, in  restitution orders raises issues related to the types of harms that  should be compensated in civil versus criminal proceedings. For  example, a stakeholder representing defendants stated that federal  criminal law is not suited to determine injuries such as emotional  distress and pain and suffering, whereas the civil system is set up to  handle these kinds of issues and losses. Further, an association  representing federal prosecutors stated that federal prosecutors and  federal probation officers in criminal cases lack the specialized skills  to determine losses for cases involving compensation for pain,  suffering, and emotional distress. This was an issue that was  considered during passage of the MVRA as well, as the report  accompanying the MVRA provides, “It is the committee’s intent that  courts order full restitution to all identifiable victims of covered  offenses, while guaranteeing that the sentencing phase of criminal  trials do not become fora for the determination of facts and issues  better suited to civil proceedings.”

Increased complexity to determine losses. Four of 10 stakeholders  we interviewed stated that determining losses such as emotional  distress and pain and suffering would add complexity to the restitution  process. For example, DOJ officials stated that pain and suffering and  emotional distress are not easily quantified and restitution hearings to  examine such losses would involve experts trying to prove these kinds  of losses.

Stakeholders Identified Additional Factors to Consider Related to the Potential Expansion of Courts’ Authority to Award Restitution

Stakeholders we interviewed identified the following factors to consider  related to the potential broadening of courts’ authority to order restitution  generally, in addition to the factors discussed above associated with  particular expansions of federal courts’ authority to order restitution:  Increased restitution debt and collection challenges. Seven of 10  stakeholders we interviewed told us that increased restitution debt  and collectability challenges should be considered in the potential  broadening of federal courts’ authority to order restitution. For  example, two stakeholders representing defendants stated that  offenders often lack the financial resources to pay restitution. Under  the MVRA, federal courts must order mandatory restitution without  consideration of a defendant’s financial resources which has resulted  in large amounts of uncollected federal restitution debt. These two  stakeholders stated that by broadening federal courts’ authority to  order restitution, the amount of uncollected restitution debt owed to  victims would continue to increase. One of these stakeholders further  suggested that the addition of secondary restitution (i.e., additional  victims entitled to compensation) could have the effect of reducing the  amount paid to the primary victims because all classes of victims will  be forced to compete for payment on restitution awards that will often  far exceed an offender’s ability to pay. According to judiciary officials,  adding to the uncollected restitution debt would lead to further  collection challenges, including the additional DOJ efforts needed to  collect more restitution debt and additional supervision of offender  restitution payments by probation officers. These issues were also  observed during the passage of the MVRA. The report accompanying  the law states that the Chair of the Criminal Law Committee of the  Judicial Conference of the United States had testified before the  Senate Judiciary Committee that 85 percent of all federal defendants  are indigent at the time of sentencing and mandatory restitution would  not lead to an appreciable increase in victim compensation; however,  the report noted the Committee’s view of the benefits of even nominal  payments to victims as well as the potential penalogical benefits of  requiring the offender to be accountable for the harm caused to the  victim.

Suitability of criminal versus civil proceedings. Seven of 10  stakeholders we interviewed told us that the suitability of criminal  versus civil proceedings should be considered in the potential  broadening of federal courts’ authority to order restitution. According  to judiciary officials, a system has been developed with rules to litigate  damages in civil proceedings which are not included within criminal  trials. Further, an association representing defendants told us that  attorneys who directly represent alleged victims in civil proceedings  are more appropriate parties to pursue this type of litigation. The  association said this is because the prosecutor represents the public  at large instead of an individual client, whereas a private attorney has  an obligation to obtain a maximum recovery for the client. Comparing  the process for the compensation of victims through restitution and  civil proceedings, a stakeholder knowledgeable about federal  restitution told us that the restitution process to compensate victims is  more efficient for victims compared to civil proceedings which can last  longer and result in victims incurring costs for ligation. Further, this  individual stated that through the federal criminal restitution process in  contrast to civil proceedings, victims receive help collecting funds  through the federal courts, prisons, and probation officers during  offender supervision. Other stakeholders did not consider the civil  forum to be a suitable alternative for victims. One stakeholder  representing victims stated that civil proceedings are inadequate for  compensating victims and should not be considered. Additionally,  another stakeholder representing victims also stated that victims may  lack access to evidence to pursue civil litigation against an offender in  cases where the conduct was not part of an offense of conviction or  listed in a plea agreement. The legislative history of the MVRA also  acknowledged the need for a balance, providing, as noted above, the  intent that courts order full restitution but also that sentencing not  become a forum for issues better suited to civil proceedings; to that  end, the MVRA restricted mandatory restitution requirements to the  specified set of crimes.

Impacts to federal resources. Five of 10 stakeholders we  interviewed told us that impacts to judiciary and DOJ resources— including increased workloads, additional legal services, and the need  for more experts—should be considered in the potential broadening of  federal courts’ authority to order restitution. According to judiciary  officials, broadening federal courts’ authority to order restitution could  result in increased workloads by probation officers who could have to  conduct more investigations to support additional restitution orders.  As discussed above, federal probation officers could also be required  to track and supervise more restitution payments. Officials from  Federal and Community Defenders told us that if federal courts’  authority to order restitution were broadened, additional legal services  would need to be provided to offenders. For example, these officials  stated that larger restitution orders could require increased workloads  for federal defenders to work on behalf of offenders to modify  payment schedules and their level of supervision by probation  officers. Likewise, an association representing defendants stated that  increased collection efforts could be required by U.S. Attorneys’  Offices’ Financial Litigation Units if the number of victims eligible for  restitution increased. According to DOJ officials, prosecutors could  experience increased workloads as they would be identifying more  victims, thereby having to spend more time investigating and  determining losses. Moreover, an association representing  defendants told us that additional federal experts could be needed as  sentencing courts and probation officers lack the resources and  expertise to examine the harms that would result from broadening  restitution authority. Attention to the costs to the justice system for  mandatory restitution was considered in 1995, with the legislative  history of the MVRA noting the attempt to reduce costs by limiting  mandatory restitution to offenses in which an identifiable victim  suffered a physical injury or monetary loss.

Concerns about offenders’ reentry into society. Two of 10  stakeholders we interviewed told us that offenders’ reentry into society  should be considered in the potential broadening of federal courts’  authority to order restitution. These two stakeholders, an association  that represents defendants and officials from Federal and Community  Defenders, told us that if the authority of the federal courts to order  restitution were broadened to include non-monetary harms, offenders  would be further burdened in their ability to reenter society due to  excessive monetary sanctions from restitution orders. Further, these  two stakeholders stated that offenders with large restitution orders  face challenges obtaining employment, securing housing, and  satisfying other financial obligations, which could increase their risk for  recidivism and reduce their ability to pay any restitution.

We provided a draft of this report for review and comment to DOJ, USSC,  the Administrative Office of the U.S. Courts, and the Federal Judicial  Center. The Administrative Office of the U.S. Courts provided technical  comments that we incorporated as appropriate.

We are sending copies of this report to the Attorney General, the Judicial  Conference of the United States, the Directors of the Administrative Office  of the U.S. Courts and the Federal Judicial Center, the Staff Director of  USSC, and other interested parties. In addition, the report is available at  no charge on the GAO website at http://www.gao.gov.

If you and your staff have any questions about this report, please contact  me at (202) 512-8777 or goodwing@gao.gov. Contact points for our  Offices of Congressional Relations and Public Affairs may be found on  the last page of this report. GAO staff who made key contributions are  listed in appendix III.

Appendix I: Overview of Restitution Provisions for Potential Expansion in the Justice for All Reauthorization Act of 2016

Table 2 summarizes and describes the provisions included in the Justice  for All Reauthorization Act of 2016 for potential expansion of federal  courts’ authority to order restitution and the factors cited by stakeholders  that Congress should consider in broadening existing restitution statutes.  .

Appendix II: Restitution Imposed by the Federal Courts from Fiscal Years 1996 through 2016

Table 3 and 4 summarize restitution imposed by the federal courts from  fiscal years 1996 through 2016 for individual and organizational  offenders.

In addition to the contact named above, Dawn Locke (Assistant Director);  Carl Potenzieri; Janet Temko-Blinder; David Alexander; Sasan J. “Jon”  Najmi; Amber Edwards; Kathleen Donovan; and Emily Hutz, made key  contributions to this report.