Mandatory restitution for Federal offenses

Title 18, United States Code, is amended by striking section 3663 and all that follows through section 3664 and inserting the following:

3663.

Mandatory restitution

(a)

Restitution Required

The court shall order a convicted defendant to make restitution for all pecuniary loss to identifiable victims, including pecuniary loss resulting from physical injury to, or the death of, another, proximately resulting from the offense. (b)

To Whom Made

(1)

Generally

The court shall order restitution be made to each victim of the offense. (2)

Definition of victim

As used in this section and section 3664, the term victim means— (A)each identifiable person or entity suffering the pecuniary loss (and any successor to that person or entity); and (B)others, as agreed to in a plea agreement or otherwise provided by law. (c)

Extent of Restitution

Restitution shall compensate the victim for all of the victim’s pecuniary loss, including— (1)the victim’s costs of seeking and collecting restitution; (2)in the case of an offense resulting in bodily injury to a victim— (A)an amount equal to the cost of necessary medical and related professional services and devices relating to physical, psychiatric, and psychological care, including nonmedical care and treatment rendered in accordance with a method of healing recognized by the law of the place of treatment; (B)an amount equal to the cost of necessary physical and occupational therapy and rehabilitation; and (C)income lost by such victim as a result of such offense; (3)in the case of an offense resulting in bodily injury that results in the death of the victim, amount equal to the cost of necessary funeral and related services; and (4)lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense. (d)

Special Rule for Misdemeanors

In the case of a misdemeanor, an order of restitution may be in lieu of any other penalty. (e)

Alternative Arrangements in Light of Practical Problems

The court shall provide as complete a restitution to as many victims as possible, though not the full restitution to all victims otherwise required by this section, to the extent the court finds on the record that— (1)the number of identifiable victims is so large as to make restitution impracticable; or (2)determining complex issues of fact related to the cause or amount of a victim’s losses would complicate or prolong the sentencing process to such a degree that the need to provide restitution to that victim is outweighed by the burden on the sentencing process.

3664.

Procedure for issuance and enforcement of order of restitution

(a)

Report by Probation Officer

(1)

Duty to make

The probation officer shall obtain and include in the presentence report, or in a separate report, as the court may direct, information sufficient for the court to fashion a restitution order. (2)

Contents

The report shall include, to the extent practicable, a complete accounting of the losses to each victim, any restitution owed pursuant to a plea agreement, and information relating to the economic circumstances of each defendant. If the number or identity of victims cannot be reasonably ascertained, or other circumstances exist that make this requirement impracticable, the probation officer shall so inform the court and make the best efforts possible to estimate the loss and identify the victims. (b)

Disclosure to parties

The court shall disclose to the defendant, the attorney for the Government, and, upon request, potential recipients of restitution, all portions of the presentence or other report pertaining to the matters described in subsection (a). (c)

Information from Attorney for the Government

The attorney for the Government shall provide to the probation officer any information the Attorney for the Government has relevant to the matters required to be reported under subsection (a). (d)

Notice to Victims

The probation officer shall, before submitting the presentence report under subsection (a), to the extent practicable— (1)provide notice to all identified victims of— (A)the offense or offenses of which the defendant was convicted; (B)the amounts subject to restitution submitted to the probation officer; (C)the opportunity of the victim to submit information to the probation officer concerning the amount of the victim’s losses; (D)the scheduled date, time, and place of the sentencing hearing; (E)the availability of a lien in favor of the victim; and (F)the opportunity of the victim to file with the probation officer a separate affidavit relating to the amount of the victim’s losses subject to restitution; and (2)provide the victim with an affidavit form to submit pursuant to paragraph (1)(F). (e)

Defendant’s Affidavit as to Finances

Each defendant shall prepare and file with the probation officer an affidavit fully describing the financial resources of the defendant, including a complete listing of all assets owned or controlled by the defendant as of the date on which the defendant was arrested, the financial needs and earning ability of the defendant and the defendant’s dependents, and such other information that the court requires relating to such other factors as the court deems appropriate. (f)

Additional Documentation or Testimony

After reviewing the report of the probation officer, the court may require additional documentation or hear testimony. The privacy of any records filed, or testimony heard, pursuant to this section shall be maintained to the greatest extent possible, and such records may be filed or testimony heard in camera. (g)

Date for Final Determination

If a victim’s losses are not ascertainable by the date that is 10 days before sentencing, the attorney for the Government or the probation officer shall so inform the court, and the court shall set a date for the final determination of the victim’s losses, not to exceed 90 days after sentencing. If the victim subsequently discovers further losses, the victim shall have 60 days after discovery of those losses in which to petition the court for an amended restitution order. Such order may be granted only upon a showing of good cause for the failure to include such losses in the initial claim for restitution. (h)

Referral to Magistrate or Special Master

The court may refer any issue arising in connection with a proposed order of restitution to a magistrate judge or special master for proposed findings of fact and recommendations as to disposition, subject to a de novo determination of the issue by the court. (i)

Burdens of Proof

Any dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence. The burden of demonstrating the amount of the loss sustained by a victim of restitution as a result of the offense shall be on the attorney for the Government. The burden of demonstrating the financial resources of the defendant and the financial needs of the defendant’s dependents, shall be on the defendant. The burden of demonstrating such other matters as the court deems appropriate shall be upon the party designated by the court as justice requires. (j)

Order of Payment

(1)Upon determination of the amount of restitution owed to each victim, the court shall order that the full amount of restitution is due and payable immediately. (2)The court shall specify in the restitution order the manner in which the restitution is to be paid. The court may provide for payment in installments according to a schedule, based on— (A)the financial resources and other assets of the defendant, including whether any of these assets are jointly controlled; (B)projected earnings and other income of the defendant; and (C)any financial obligations of the defendant; including obligations to dependents. (3)The Attorney General may collect and apply unreported or otherwise newly available assets to the payment of restitution, without regard to any installment payment provisions. (k)

Order as Final Judgment

A sentence that imposes an order of restitution is a final judgment notwithstanding the fact that— (1)such a sentence can subsequently be— (A)corrected under Rule 35 of the Federal Rules of Criminal Procedure and section 3742 of chapter 235 of this title; (B)appealed and modified under section 3742; (C)amended under subsection (d)(5); or (D)adjusted under section 3664(k), 3572, or 3613A; or (2)the defendant may be resentenced under section 3565 or 3614. (l)

Joint and several responsibility

If the offense involves more than one defendant, the court may order each defendant jointly and severally liable for any or all of the restitution. (m)

Supervised Release

A court shall not terminate a term of supervised release under section 3583(e) before the order to pay restitution has been completely satisfied. A court shall extend a term of supervised release beyond that otherwise imposed under other provisions of law, until the defendant has paid the restitution in full or the court determines the economic circumstances of the defendant do not allow the payment of any further restitution. If the supervised release is extended under this subsection, the court shall order that the sole condition of supervised release shall be payment of restitution. (n)

Effect of Insurance and Other Compensation

(1)

Insurance

In no case shall the fact that a victim receives or is entitled to receive compensation with respect to a loss from insurance or any other source be considered in determining the amount of restitution. If a victim receives compensation from insurance or any other source with respect to a loss, the court shall order that restitution be paid to the person who provided or is obligated to provide the compensation, but the restitution order shall provide that all victims be paid before such a provider of compensation. (2)

Other compensation

Any amount paid to a victim under an order of restitution shall be reduced by any amount later recovered as compensatory damages for the same loss by the victim in— (A)any Federal civil proceeding; and (B)any State civil proceeding, to the extent provided by the law of the State. (o)

Details of Payments

(1)

Minimum payment required

A restitution order may direct the defendant to make nominal periodic payments if the court finds on the record that the economic circumstances of the defendant do not allow the payment of any amount of a restitution order, and do not allow for the payment of the full amount of a restitution order in the foreseeable future under any reasonable schedule of payments. (2)

In-kind payments

An in-kind payment may be in the form of return of property, replacement of property, or if the victim agrees, services rendered to the victim or a person or organization other than the victim. (p)

Different payment schedules for multiple victims

If the court finds that more than 1 victim has sustained a loss requiring restitution by a defendant, the court may provide for a different payment schedule for each victim, based on their individual losses and economic circumstances. In any case in which the United States is a victim, the court shall ensure that all other victims receive full restitution before the United States receives any restitution. (q)

Material Change in Defendant’s Ability to Pay

The defendant shall notify the court and the Attorney General of any material change in the defendant’s economic circumstances that might affect the defendant’s ability to pay restitution. The court may also accept notification of a material change in the defendant’s economic circumstances from the United States or from the victim. The Attorney General shall certify to the court that the victims have been notified of the change in circumstances. Upon receipt of the notification, the court may, on its own motion, or the motion of any party, including the victim, adjust the payment schedule, or require immediate payment in full, as the interests of justice require. (r)

Name and address changes

It is the responsibility of the victim to provide any change in name or mailing address to the court while restitution is still owed. Not later than 30 days after any change in name or mailing or residence address, a person owing restitution shall promptly report the change to the court. The confidentiality of any information relating to a victim shall be maintained. (s)

Enforcement

(1)

Generally

An order of restitution may be enforced by the United States in the manner provided for in subchapter C of chapter 227 and subchapter B of chapter 229 of this title. (2)

Abstract of judgment

At the request of a victim named in a restitution order, the clerk of the court shall issue an abstract of judgment certifying that a judgment has been entered in favor of such victim in the amount specified in the restitution order. Upon registering, recording, docketing, or indexing such abstract in accordance with the rules and requirements relating to judgments of the court of the State where the district court is located, the abstract of judgment shall be a lien on the property of the defendant located in such State in the same manner and to the same extent and under the same conditions as a judgment of a court of general jurisdiction in that State. (3)

Special rule for in-kind orders

An order of in-kind restitution in the form of services shall be enforced by the probation officer. (t)

Effect of additional resources

If a person obligated to provide restitution, or pay a fine, receives additional resources from any source, including inheritance, settlement, or other judgment, during a period of incarceration or supervision, such person shall be required to apply the value of such resources to any restitution or fine still owed. (u)

Rights of victims

(1)

Not required to participate

No victim shall be required to participate in any phase of a restitution order. (2)

Assignment to Fund

A victim may at any time assign an interest in restitution payments to the Crime Victims Fund in the Treasury without in any way impairing the obligation of the defendant to make such payments. (v)

No Cause of Action Created Against the United States or its officers or employees

Nothing in this section or section or 3663 shall be construed to create a cause of action not otherwise authorized in favor of any person against the United States or any officer or employee of the United States.