[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]


 
                   CRIMINAL RESTITUTION IMPROVEMENT 
                              ACT OF 2006

=======================================================================

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON CRIME, TERRORISM,
                         AND HOMELAND SECURITY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                                   ON

                               H.R. 5673

                               __________

                             JUNE 13, 2006

                               __________

                           Serial No. 109-116

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov


                                 ______

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                       COMMITTEE ON THE JUDICIARY

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois              JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina         HOWARD L. BERMAN, California
LAMAR SMITH, Texas                   RICK BOUCHER, Virginia
ELTON GALLEGLY, California           JERROLD NADLER, New York
BOB GOODLATTE, Virginia              ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California        ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee        SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah                   MAXINE WATERS, California
SPENCER BACHUS, Alabama              MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina           WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana          ROBERT WEXLER, Florida
MARK GREEN, Wisconsin                ANTHONY D. WEINER, New York
RIC KELLER, Florida                  ADAM B. SCHIFF, California
DARRELL ISSA, California             LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona                  CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana                  DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas

             Philip G. Kiko, General Counsel-Chief of Staff
               Perry H. Apelbaum, Minority Chief Counsel
                                 ------                                

        Subcommittee on Crime, Terrorism, and Homeland Security

                 HOWARD COBLE, North Carolina, Chairman

DANIEL E. LUNGREN, California        ROBERT C. SCOTT, Virginia
MARK GREEN, Wisconsin                SHEILA JACKSON LEE, Texas
TOM FEENEY, Florida                  MAXINE WATERS, California
STEVE CHABOT, Ohio                   MARTIN T. MEEHAN, Massachusetts
RIC KELLER, Florida                  WILLIAM D. DELAHUNT, Massachusetts
JEFF FLAKE, Arizona                  ANTHONY D. WEINER, New York
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
LOUIE GOHMERT, Texas

                     Michael Volkov, Chief Counsel

                          David Brink, Counsel

                        Caroline Lynch, Counsel

                 Jason Cervenak, Full Committee Counsel

                     Bobby Vassar, Minority Counsel


                            C O N T E N T S

                              ----------                              

                             JUNE 13, 2006

                           OPENING STATEMENT

                                                                   Page
The Honorable Howard Coble, a Representative in Congress from the 
  State of North Carolina, and Chairman, Subcommittee on Crime, 
  Terrorism, and Homeland Security...............................     1
The Honorable Robert C. Scott, a Representative in Congress from 
  the State of Virginia, and Ranking Member, Subcommittee on 
  Crime, Terrorism, and Homeland Security........................     1
The Honorable Steve Chabot, a Representative in Congress from the 
  State of Ohio, and Member, Subcommittee on the Constitution....     3

                               WITNESSES

Mr. Douglas Beloof, Director, National Crime Victim Law 
  Institute, Lewis and Clark Law School
  Oral Testimony.................................................     6
  Prepared Statement.............................................     7
Mr. Daniel Levey, President, Parents of Murdered Children, Inc.
  Oral Testimony.................................................    10
  Prepared Statement.............................................    12
Mr. James Felman, Partner, Kynes, Markman & Felman, P.A. and Co-
  Chair, Committee on Corrections and Sentencing
  Oral Testimony.................................................    23
  Prepared Statement.............................................    25

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement of the Honorable Robert C. Scott, a 
  Representative in Congress from the State of Virginia, and 
  Ranking Member, Subcommittee on Crime, Terrorism, and Homeland 
  Security.......................................................    58
Prepared Statement of the Honorable Shelia Jackson Lee, a 
  Representative in Congress from the State of Texas.............    60
Prepared Statement of the Honorable Steve Chabot, a 
  Representative in Congress from the State of Ohio..............    64


                   CRIMINAL RESTITUTION IMPROVEMENT 
                              ACT OF 2006

                              ----------                              


                         TUESDAY, JUNE 13, 2006

                  House of Representatives,
                  Subcommittee on Crime, Terrorism,
                              and Homeland Security
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to call, at 9:30 a.m., in 
Room 2141, Rayburn House Office Building, the Honorable Howard 
Coble (Chairman of the Subcommittee) presiding.
    Mr. Coble. Good morning, ladies and gentlemen. We welcome 
you to this important hearing before the Subcommittee on Crime, 
Terrorism, and Homeland Security to examine the Criminal 
Restitution Improvement Act of 2006 introduced by the 
distinguished gentleman from Ohio, our colleague and Member, 
Mr. Chabot.
    As a strong proponent of victims rights, I'm troubled by 
recent reports indicating that a large percentage of 
restitution is uncollected. Restitution, it seems to me, plays 
a critical role in the deterrence and rehabilitation of 
offenders by encouraging them to compensate their victims; yet 
restitution remains one of the most under-enforced victims 
rights within the criminal justice system.
    Crime victims suffer not only physical and emotional 
trauma, but financial loss as well. The Justice Department 
estimates the tangible cost of crime, including medical 
expenses, lost wages and victim assistance, to be approximately 
$105 billion a year; unfortunately, most of this is not 
collected.
    Between 1996 and 2002, the amount of outstanding criminal 
debt more than quadrupled, from roughly 6 billion to almost $25 
billion. The Criminal Restitution Improvement Act before us 
today enhances the Federal restitution system by providing 
additional tools to the Government, probation department, and 
the courts to assist with collection of outstanding 
restitution.
    I commend Mr. Chabot--and I think he'll be with us 
subsequently--for his dedication to crime victims and his hard 
work on this legislation. And I note for the record that the 
Justice Department has indicated its support for this 
legislation.
    I look forward to hearing from our witnesses today. And now 
I'm pleased to recognize the distinguished gentleman from 
Virginia, the Ranking Member of this Subcommittee, Mr. Bobby 
Scott.
    Mr. Scott. Thank you, Mr. Chairman. I'm pleased to join you 
in convening the hearing on the Criminal Restitution 
Improvement Act of 2006. We need to see, however, if this bill 
will actually increase restitution, as the name implies.
    Restitution is already mandated in most instances of victim 
loss in Federal criminal cases. As the GAO reported in its 2001 
study on the issue, the Mandatory Victims Restitution Act of 
1996, requiring the court to order full restitution to each 
victim in the full amount of each victim's losses without 
regard of the offender's economic situation, has not resulted 
in significantly more restitution being collected, but only in 
a dramatic increase in the balance of reported uncollected 
criminal debt. The fact is the vast majority of criminal 
defendants are indigent, requiring the appointment of a public 
defender to represent them.
    At the same time, the GAO report indicated that even in the 
few cases where the defendant does have some assets, it is 
difficult to collect restitution noting that, quote, ``criminal 
defendants may be incarcerated or deported, with little earning 
capacity.'' They often spend money on attorneys who are paid up 
front. Their assets, acquired through criminal activity, may be 
seized by the Government prior to conviction; thus, by the time 
fines and restitution are assessed, offenders may have no 
assets left for making payments and restitution.
    If the vast majority of offenders are broke when they come 
to prison, going out and trying to find a job with a felony 
conviction is not likely to improve their ability to have money 
to meet their own needs to survive, and the survival of their 
dependents, and pay restitution.
    Everyone is in favor of more victim restitution; however, 
tying it to the false hope of squeezing more restitution out of 
destitute prisoners is not likely to result in the collection 
of more restitution, but only increasing the frustration of 
victims, offenders, and the criminal justice system in general.
    There is an old English saying that you can't squeeze blood 
out of a turnip. Mandating restitution in even more cases where 
it makes no sense, and insisting on collection efforts possibly 
for the life of the offender upon his or her release, will not 
result in more restitution being collected but only in more 
frustration, additional unproductive costs, financial or 
otherwise, for all involved.
    It certainly has been my observation that restitution works 
best when it is an alternative to incarceration and the loss of 
employment and assets that accompany such incarceration. Even 
more dramatically but realistically, placing more emphasis on 
mandating restitution where it makes no sense than the system 
already does may actually result in more failures of offenders 
to succeed upon their return, which we know will likely result 
in more victimizations.
    As you know, Mr. Chairman, our counsels are working 
diligently on developing a comprehensive prisoner reentry 
program to reduce the tragic reality that more than two-thirds 
of the released offenders end up back in prison within 3 years 
of release. Clearly mandating more restitution where it doesn't 
make any sense will even make that effort more difficult.
    Ironically, one program that does allow a modicum of 
restitution to be paid by prisoners, about $3 million a year, 
the Federal Prison Industries Program, is under siege in the 
Judiciary Committee in Congress, and it's been substantially 
reduced in terms of the number of inmates participating, and 
could be eliminated if some have their way.
    We're all in favor of victim restitution actually being 
paid to victims; however, I do not believe, Mr. Chairman, that 
we should condition the payment of more victim restitution on 
the false hope of mandating more of it from a destitute group 
of offenders at the cost of more frustration and unproductive 
effort for all concerned. Instead, I believe we should bite the 
bullet, establish a victims restitution fund from Federal 
appropriations, and that way victim restitution is neither 
dependent upon the vagaries of the offender's ability to pay or 
the Government's collection efforts.
    We should then refocus the Federal victim restitution 
collection efforts on areas where it will have more impact, 
such as going after the assets of white collar offenders who 
profit handsomely from their crimes and have a means of paying. 
In a rare instance where money can be collected from 
restitution that has been paid to victims, the additional 
collections can also be paid to him or her.
    I look forward to the testimony of our witnesses, and on 
the issue of more mandating victim restitution and working with 
you, Mr. Chairman, on developing ways where we can actually 
ensure more restitution rather than creating false hope that 
may be provided by this bill.
    Thank you, Mr. Chairman.
    Mr. Coble. I thank the gentleman from Virginia.
    Mr. Coble. We normally restrict opening statements to the 
Chairman and the Ranking Member, but the primary sponsor of 
this bill has requested time to briefly give an opening 
statement. And I recognize the distinguished gentleman from 
Ohio, Mr. Chabot. But meanwhile, we have been joined as well by 
the distinguished gentleman from Massachusetts, Mr. Delahunt. 
Good to have you here, Bill.
    Mr. Chabot.
    Mr. Chabot. Thank you, Mr. Chairman.
    I want to thank you, Mr. Chairman, for holding this hearing 
on this important issue. The treatment of crime victims is an 
area that I felt for a long time deserves more attention and, 
unfortunately, is too often overlooked in the criminal justice 
system.
    I want to also say that I agree with one of the things that 
the Ranking Member mentioned about Federal prison industries. I 
think that it is an area that is under some assault right now, 
and I think we have to be very careful in how we move forward 
with that, because putting prisoners to work, I think, is good 
for them, it's good for the public, it's good for maintaining 
control at the prisons. And any effort which would undermine 
that, I think, would be a mistake. We find that rates of 
recidivism, for example, are improved when prisoners have a 
skill, because most of these folks are going to be coming out 
someday. So I want to thank the distinguished Member who didn't 
hear what I said, but I commended him on his----
    Mr. Scott. I was listening.
    Mr. Chabot. I was saying something nice about you.
    Mr. Scott. I heard about prison industries.
    Mr. Chabot. So--thank you.
    And secondly, last year a number of us worked on the 
Justice for All Act, and I was very pleased that that 
particular piece of legislation did pass and that we were able 
to include in there protections for crime victims.
    And I had originally been working for years on trying to 
pass a restitutional amendment for victims rights, but this 
bill, although it was statutory, I think does go in the right 
direction and it provides crime victims with what in essence is 
a bill of rights to truly provide crime victims with dignity 
and respect during an established and enforceable set of 
rights.
    This year I'd like to continue the progress that Congress 
has made, and on the 10th anniversary of the Federal Mandatory 
Victims Restitution Act of 1996, I want to increase the 
collective efforts and enact policies to help law enforcement 
make victims whole.
    This week, I plan to introduce the Restitution Improvement 
Act of 2006, the hallmark of the bill being that restitution 
will be mandatory for all offenses with an identifiable victim 
suffering a pecuniary loss. Additional highlights include 
awarding restitution for all identifiable persons or entities, 
awarding attorneys fees associated with the collection of 
restitution, enhanced notification by probation officers of 
victims loss, and informing victims of the provisions in the 
presentence report that assess the ability of the defendant to 
pay restitution, that prohibit early termination of supervised 
release when a defendant has an outstanding restitution 
balance, and would allow for the extension of the supervised 
release for the limited purposes of collecting restitution, 
would require that restitution is due immediately instead of 
automatically establishing a payment plan.
    Defendants are jointly and severally liable for the total 
amount of victims loss. It would allow the Government to seek 
restitution from the defendant above the payment schedule when 
the Government discovers unreported assets.
    And finally, it amends the Son of Sam law, the law that 
prohibits criminals from profiting from their crime. So it 
would withstand further judicial review in accordance with the 
Schuster case.
    Restoring crime victims to the position they were in as 
much as possible before the crime--otherwise known as 
restitution--is beneficial to both the victim and to the 
offender. Studies have shown that criminals who paid a higher 
percentage of their ordered restitution have lower recidivism 
rates. Most importantly, the loss crime victims experience must 
be publicly recognized by our criminal justice system. This 
recognition helps victims heal emotionally. Financially these 
victims are owed compensation to move forward with their life. 
For example, at the Federal level, some of the most prevalent 
fraud cases involve the elderly, and it's essential that we 
recover restitution for some of society's most vulnerable 
citizens, our elderly, who oftentimes have lost a lifetime 
worth of savings.
    The way crime victims are treated within the criminal 
justice system is of paramount importance. This legislation 
will help to decrease the $40 billion criminal debt balance 
that is owed to victims. So $40 billion has been ordered to be 
made in restitution which has gone unpaid, and it will improve 
the approximately 87 percent of restitution that currently goes 
uncollected every year. So 87 percent goes uncollected.
    I look forward to hearing from our panel of witnesses, and 
want to publicly recognize and thank Daniel Levey, who is 
representing the Parents of Murdered Children, who happen to be 
headquartered in my district in Cincinnati, and I had the 
opportunity to tour that recently. So thank you, and thank all 
the witnesses.
    Mr. Coble. Mr. Chabot, since Mr. Scott was listening, I'm 
pleased that you were not slandering his good name earlier----
    Mr. Chabot. Not today.
    Mr. Coble. You said good things about him.
    Gentlemen, it is the practice of the Subcommittee to swear 
in all witnesses appearing before it. So if you will also 
please stand and raise your right hands.
    [Witnesses sworn.]
    Mr. Coble. Let the record show that each of the witnesses 
answered in the affirmative.
    We have three distinguished witnesses with us today. Our 
first witness, Mr. Douglas Beloof, is Executive Director of the 
National Crime Victim Law Institute at Lewis and Clark College. 
Professor Beloof has written the only case book on the subject 
of crime victim law, entitled ``Victims in Criminal 
Procedure,'' which won a national award for writing in 
Victimology and the Law. He has served as a prosecutor and a 
criminal defense attorney, as well as practiced torte law as a 
plaintiff's and defense attorney, and has written amicus briefs 
to appellate courts nationwide.
    Professor Beloof received his undergraduate degree from the 
University of California at Berkeley, and his JD from the 
Northwestern School of Law at Lewis and Clark College. And 
that's in Portland, is it not, Professor?
    Mr. Beloof. Yes, sir.
    Mr. Coble. Our second witness is Daniel Levey, President of 
the National Organization of Parents of Murdered Children. Mr. 
Levey has been a tireless advocate for victims rights, having 
experienced firsthand the suffering of victims' families after 
the senseless murder of his brother in November 1996. He is on 
the Board of Directors of the National Organization For Victim 
Assistance, is a founding member of the Arizona Voice for Crime 
Victims, and actively participates in numerous other victims 
rights associations. Additionally, Mr. Levey serves as Adviser 
to the Governor for Victims and as an administrator with the 
Arizona Department of Corrections Office of Victims Services.
    Mr. Levey holds a bachelor's degree in administration of 
justice from the Arizona State University and a master's degree 
in educational leadership from Northern Arizona University--at 
Flagstaff, I presume, Mr. Levey.
    Our third witness is Mr. James Felman, partner at Kynes, 
Markman & Felman, P.A. Mr. Felman currently cochairs the 
American Bar Association's Committee on Correction and 
Sentencing, and served as President of the Tampa Bay Chapter of 
the Federal Bar Association. He is also a member of the 
Sentencing Initiative of the Constitution Project. Mr. Felman 
is the author of various numerous publications on the issue of 
sentencing. He received a bachelor's degree in history from 
Wake Forest University, and both a master's in philosophy and a 
JD from Duke University. Glad to see the North Carolina 
connection, Mr. Felman.
    Gentlemen, we operate under the 5-minute rule, as you all 
have previously been told. So when you see the amber light 
appear before you in the panel on your table, that is your 
warning to prepare to wrap it up. When the red light appears, 
of course, the 5 minutes have elapsed. So if you can confine 
your statements to on or about 5 minutes, it will be 
appreciated.
    And, Mr. Beloof, we will start with you.

 TESTIMONY OF DOUGLAS BELOOF, DIRECTOR, NATIONAL CRIME VICTIM 
           LAW INSTITUTE, LEWIS AND CLARK LAW SCHOOL

    Mr. Beloof. Thank you for the opportunity to testify, Mr. 
Chair and honorable Committee Members. I'm here to testify in 
support of the Criminal Restitution Improvements Act of 2006, 
which cleans up and improves the Crime Victims Restitution Act 
of 1996.
    My name is Doug Beloof, I'm a law professor, and I direct 
the National Crime Victim Law Institute, which is a national 
law organization founded to support crime victim lawyers around 
the country.
    Mandatory restitution and procedures that maximize the 
potential for collection of restitution are among the most 
critical laws for crime victims. Of course, receiving some 
recompense for the victim's loss resulting from the criminal 
harm is important and should not be understated. It would, 
however, be shortsighted to view this as the only purpose of 
restitution. More than any other condition of sentencing, 
restitution comes the closest to being personal to the victim. 
It is also of great significance for the victim to have the 
judge presiding over the sentence acknowledge, as the 
representative of the Government, that the victim has in fact 
been financially harmed and to have the convict who 
intentionally inflicted the harm be held in judgment for the 
full amount of restitution.
    For victims, this is a critical affirmation, a moment when 
the criminal justice system stands by the victim. In mandatory 
and full restitution, the message is sent to the victim that 
the victim's loss is officially recognized and that 
responsibility for that loss is squarely placed where it 
belongs: on the convict.
    To be sure, it is improbable that many or maybe even most 
victims of crime will receive full and complete restitution 
from their offender. However, this point should not detract 
from the other important functions of full and mandatory 
restitution or from the effort to obtain that full and complete 
restitution from the offender.
    The ordering of full and mandatory restitution also serves 
important penalogical functions. For the first time, the 
defendant is confronted with the reality of the financial 
devastation he has wrought. Less than mandatory and full 
restitution sends the message that crimes can be committed for 
pennies on the dollar. When a judge orders restitution, the 
message to the offender and to the victim--or when a judge 
orders reduced restitution--excuse me--the message to the 
offender and the victim is that the court does not care enough 
about the victim's harm to acknowledge the full extent of the 
defendant's responsibility.
    Moreover, in standing by the victim after the conviction of 
the defendant by ordering full and complete restitution, it is 
important, to the extent practically possible, that mandatory 
restitution laws are drafted to facilitate the ordering and 
collection of comprehensive restitution. This maximizes the 
possibility of recovery. For these and other reasons, I 
strongly support the Criminal Restitution Improvements Act of 
2006.
    The central judicial objection to the original legislation 
underlying this bill, the Crime Victim Restitution Act of 1996, 
was the fear that the sky would fall upon the judiciary because 
that legislation would transform Federal courts into collection 
agencies. Of course, experience after the bill's enactment has 
shown that the sky has not fallen. Federal courts have not been 
overwhelmed with restitution matters. Nevertheless, the present 
act laudably seeks to reduce the restitution burden upon the 
courts by facilitating the collection of restitution by 
executive and administrative agencies.
    The judicial conference testimony in 1995 was concerned 
that the length and complicated nature of assessing the harm, 
such as mail fraud schemes which can involve multitudes of 
victims, would be difficult for the courts to meet. The present 
act seeks to mitigate that judicial concern significantly. If 
there are substantial practical problems in ordering 
restitution, under this improvement act the courts are only 
required to order restitution to the best of their ability.
    Misdemeanor case disposition by the court can potentially 
be streamlined as legislation provides that restitution may be 
ordered in lieu of any other penalty.
    Moreover, as communications between various Government 
agencies are improved under the act, ultimately these improved 
communications will facilitate the court's restitution tasks.
    To be sure, the provisions that supervised release ends 
only after restitution obligations are met would have the 
potential to increase the supervision responsibilities of 
courts, except that the bill dramatically limits the function 
of that ongoing supervision simply to compliance with the 
restitution order. It is fitting and proper to hold defendants 
accountable in this way, nor does it impose an impossible 
burden upon them.
    Mr. Coble. If you will suspend just a moment. The panel on 
your table is malfunctioning. So what I may do, folks, I may 
just tap when the amber light--but you can go ahead and wrap 
up, Mr. Beloof.
    Mr. Beloof. Thank you, sir, very much.
    The Supreme Court has held that incarceration is not 
available for sanctioning failure to pay if the reason for 
nonpayment is indigence. Thus, defendants are sheltered from 
failure to meet payment schedules where it is impractical to do 
so.
    Thank you, Mr. Chairman.
    Mr. Coble. Thank you, Mr. Beloof.
    [The prepared statement of Mr. Beloof follows:]

           Prepared Statement of Professor Douglas E. Beloof

    Mr. Chair and Honorable Committee Members,
    Thank you for the opportunity to testify in support of the 
``Criminal Restitution Improvements Act of 2006.'' My name is Douglas 
E. Beloof. I am a law professor at Lewis & Clark Law School and the 
Director of the National Crime Victim Law Institute.
    Mandatory restitution and procedures that maximize the potential 
for collection of restitution are among the most critical laws for 
crime victims. Of course, receiving some recompense for the victims' 
losses resulting from the criminal harm is important. However, it would 
be shortsighted to view this as the only purpose of restitution. More 
than any other condition of sentencing, restitution comes closest to 
being personal to the victim. It is also of great significance for a 
victim to have the judge presiding over the sentencing acknowledge that 
the victim has in fact been financially harmed and to have the convict 
who inflicted the harm be held in judgment for the full amount of 
restitution.
    For victims, this order is a critical affirmation--a moment when 
the criminal justice system stands by the victim. In mandatory and full 
restitution, the message is sent to the victim that the victim's loss 
is officially recognized and that responsibility for that loss is 
squarely placed where it belongs. To be sure, it is improbable that 
many or even most victims of crime will receive full restitution from 
their offender. However, this point should not detract from these other 
important functions of full and mandatory restitution.
    The ordering of full and mandatory restitution serves an important 
penological function as well. For the first time, the defendant is 
confronted with the reality of the financial devastation he has 
wrought. Less than mandatory and full restitution sends the message 
that crimes can be committed for pennies on the dollar. When a judge 
orders reduced restitution, the message to the offender (and the 
victim) is that the court does not care enough about the victims' harm 
to acknowledge the full extent of the defendant's responsibility.
    Moreover, in standing by the victim after the conviction of the 
defendant by ordering full and complete restitution, it is important 
that, to the extent practically possible, mandatory restitution laws 
are drafted to facilitate the ordering and collection of comprehensive 
restitution. This maximizes the possibility of some recovery.
    For these, and other, reasons I strongly support the ``Criminal 
Restitution Improvements Act of 2006.''
    The central judicial objection to the original legislation 
underlying this bill (The ``Crime Victim Restitution Act of 1995'') was 
the fear that the sky would fall in on the judiciary because that 
legislation would ``transform federal courts into `collection 
agencies.' '' Judicial Conference of the United States, Statement of 
Judge Marianne Trump Barry, Committee on the Judiciary, United States 
Senate on S. 173 The Crime Victims Restitution Act of 1995. November 8, 
1995, at page 10. (hereinafter Judicial Conference Testimony). Of 
course, experience after the bill's enactment has shown that the sky 
has not fallen. Federal Courts have not been overwhelmed with 
restitution matters. Nevertheless, the present Act laudably seeks to 
reduce the restitution burden upon the courts, by facilitating the 
collection of restitution by executive and administrative agencies.
    The Judicial Conference testimony in 1995 was concerned that ``the 
length and complicated nature of assessing the harm, such as mail fraud 
schemes, which can involve multitudes of victims, can be staggering, 
and quantifying the emotional damage or loss will be extraordinarily 
difficult.'' Judicial Conference Testimony, at Page 9. The present Act 
mitigates that concern significantly. If there are substantial 
practical problems in ordering restitution, under the Improvement act 
courts are only require to order restitution ``to the best of their 
ability.'' 3663(E).
    Misdemeanor case disposition can potentially be streamlined by the 
Courts as the legislation provides that ``restitution may be ordered in 
lieu of any other penalty.''
    Communications between various government agencies are improved 
under the act. ``The prosecutor must provide the probation officer with 
any information regarding restitution. Sec. 3664(C). In turn the 
Probation officer is more succinctly directed to include restitution in 
the pre-sentence report. Ultimately, these improved communications will 
facilitate the Courts' restitution tasks.
    To be sure, the provisions that supervised release ends only after 
restitution obligations are met would have the potential to 
considerably increase the supervision responsibilities of the Courts, 
except that the bill dramatically limits the function of that ongoing 
supervision to compliance with the restitution order. Sec. 3664(m) & 
Section. 4. It is fitting and proper to hold defendants accountable in 
this way. Nor does it impose some impossible burden upon them. The 
Supreme Court has held that incarceration is not available for 
sanctioning failure to pay if the reason for non-payment is indigence. 
Thus, defendants are sheltered from failure to meet payment schedules 
where it is impractical to do so. Moreover, such ongoing responsibility 
of the defendant brings restitution procedures into conformity with the 
intent of Congress expressed in prohibiting the discharge of criminal 
restitution in bankruptcy courts. In essence, this Act achieves similar 
public policy goals.
    The Courts fears that mandatory restitution would overwhelm the 
Courts has never been realized. The modest changes to the mandatory 
restitution law included in this Restitution Improvement Act, improve, 
rather than diminish the efficiency of the earlier Act.
    Moreover, to prioritize concerns that the collection process may 
overburden government, is a mis-prioritization of fundamental values. 
The only other alternative to government responsibility would be to 
place the burden of obtaining a judgment of restitution and collection 
of restitution upon the victim. This is an unacceptable alternative. 
Congress recently passed by overwhelming votes the ``Crime Victims 
Rights Act.'' 18 U.S.C. 3771. A fundamental principle of providing 
victims' rights is that, to the extent possible, victims should not be 
harmed by either government processes or the failure of government to 
provide process. This Act, the Restitution Improvement Act of 2006, 
like the Crime Victims' Restitution Act of 1995, embodies the proper 
prioritization of values. The Act continues in the tradition of the 
1995 Act by correctly prioritizing victims of crime and de-prioritizing 
government inconvenience and accommodations to the criminal convict who 
intentionally inflicted the loss.
    The Act also increases the scope of restitution by providing for 
mandatory restitution for all federal offenses. This is a particularly 
important improvement. On the one hand, to grant a victim of crime 
``A'' restitution, while, on the other hand denying restitution to the 
victim of crime ``B,'' is simply untenable. Such discrimination is 
ultimately based on random circumstances beyond the victim's control. 
Moreover, inclusion of all victims under restitution laws is consistent 
with the CVRA, which grants all victims of crime rights. The CVRA 
defines victims as, ``a person directly and proximately harmed as a 
result of the commission of a Federal offense . . .'' 18 U.S.C. 
3771(e). The CVRA goes on to provide that ``a crime victim has the 
following rights: . . . the right to full and timely restitution as 
provided by law. 18 U.S.C. 3771(a)(6). Expanding the scope of 
restitution under the Restitution Act of 1995 eliminates existing 
conflicts with the recently enacted CVRA.
    In closing, may I suggest that there are a few ways in which the 
bill can be improved.
    First and foremost, I strongly concur with the suggestion by the 
United States Department of Justice that provides for preservation of 
defendants' assets. See Letter to the Honorable Dennis Hastert, 
Speaker, from William Mochschella, Asst. Attorney General (May 25, 
2006) Under current law there are no statutory provisions that require 
a defendant charged with crime to preserve his assets for restitution. 
Prosecutors have no way to preserve these assets, even if they are 
proceeds from the crime itself. The effective collection of restitution 
is substantially impaired as a result. See Criminal Debt: Court Ordered 
Restitution Amounts far Exceed Likely Collections For Crime Victims in 
Selected Financial Fraud Cases, GAO-05-80. (January 2005). Ironically, 
it is easier to protect assets in a civil suit than a criminal action. 
See, Federal Debt Collections Procedures Act of 1990, 28 U.S.C. et Seq. 
Preservation of assets is already possible in criminal forfeiture 
cases. 21 U.S.C. Sec. 853(e)(1).
    Second, until restitution is met, victims should be able to claim 
the criminal loss as a loss to the I.R.S. I recently had an tax 
attorney call me and identify that the IRS was denying a loss claim 
because restitution had been ordered, even though there was no actual 
recovery. I expect it was never the intent of Congress, in providing 
for restitution, to give the I.R.S. a rationale for denying a tax loss 
deduction where restitution had not been forthcoming. This problem will 
only get worse if not corrected, because now restitution orders will 
exist until they are met by the defendant. In other words, a victim 
might never be able to claim the loss.
    Third, courts need the discretion to order restitution for a broad 
array of losses. I suggest that 3663(C) include language such as: ``In 
the discretion of the court, restitution may include any amount for any 
loss that restores the person, entity or estate to the position that 
would have existed had the defendant not committed the crime.''
    Fourth, The Act refers to loss to all identifiable ``parties.'' The 
word ``parties'' is a term of art referring to the prosecution and 
defense. This could be a source of confusion. Better language is ``each 
identifiable person, entity or estate.''
    In conclusion, the Restitution Improvements Act of 2006 is a solid 
bill and I wholeheartedly support it.
    Thank you for the opportunity to appear before you today.

    Mr. Coble. Mr. Levey.

   TESTIMONY OF DANIEL LEVEY, PRESIDENT, PARENTS OF MURDERED 
                         CHILDREN, INC.

    Mr. Levey. Good morning, Mr. Chairman and distinguished 
Members of the Subcommittee. My name is Dan Levey, and I come 
before you as the current National President for Parents of 
Murdered Children, which is also for the friends and family of 
those that have died by violence.
    I am pleased to be here on behalf of POMC to give input on 
this important piece of Federal legislation. I would like to 
acknowledge and thank Ohio Representative Steve Chabot, who has 
been a longtime supporter of victims rights and of Parents of 
Murdered Children. It is no surprise that Representative Chabot 
is a sponsor of this important piece of Federal legislation 
which aims to improve the collection enforcement of restitution 
for victims of Federal crimes.
    I am also the Adviser for Victims to Arizona Governor Janet 
Napolitano, which I'm proud to say is the first position of its 
kind in any Governor's office in the Nation. And I'm the 
current National Vice President of Administration for the 
National Organization for Victim Assistance, which is based 
here in Washington, D.C.
    However, my most important credential is one I'd rather not 
have. I lost a loved one to murder. In the early morning hours 
of November 3, 1996, my life as I knew it changed forever. Like 
so many victims who receive a phone call or a knock on the door 
with news that fundamentally alters their existence, my sister-
in-law called to tell me that my brother, Howard, had been shot 
while waiting for his friends to show up for their weekly 
morning basketball game. My brother was a well-educated 
husband, father, son, and brother and friend to many. Howard 
was shot by two gang members at point-blank range, thrown out 
of his car and left to die. I learned firsthand the harsh 
reality of what it's like to have a loved one murdered, and 
have since dedicated my life's work in memory of my beloved 
brother.
    It is with this experience and background that I come 
before you to speak on the importance of this piece of 
legislation.
    Parents of Murdered Children, by way of background, was 
founded by Charlotte and Rob Hullinger in 1978 in Cincinnati, 
Ohio, 3 months after their daughter Lisa was murdered. POMC is 
headquartered in Cincinnati, Ohio, and is the only national 
self-help organization designed solely to offer emotional 
support and information about surviving the murder of a loved 
one. And POMC has grown from a small organization in the 
Hullinger's basement to a national organization with over 60 
chapters throughout the United States, Canada, and Puerto Rico 
and provides support to over 100,000 survivors each year.
    Restitution is the fundamental need of crime victims. Its 
importance for victims with respect to financial as well as 
psychological recovery from the aftermath of crime cannot be 
overstated. Being a victim of crime, especially a violent 
crime, leaves a devastating impact on victims who cannot put a 
price tag on human life, and there are no financial 
remunerations that can ever replace what victims have lost. 
However, restitution holds offenders accountable, and, when 
paid, helps offset the economic loss experienced by the victim 
who is left with medical bills, funeral costs and other 
expenses. In some cases a murder takes away the primary 
breadwinner, leaving no way to even pay rent.
    Restitution is critical to crime victims because it assists 
them in recovering the economic losses that resulted from 
criminally injurious conduct. It's a vital part of the criminal 
justice system because it offers victims a sense of justice and 
holds offenders accountable.
    Payment of restitution promotes the active participation of 
offenders and victims in the justice process. It shifts the 
focus of justice system interventions and makes them victim-
centered rather than offender-centered. Restitution can be an 
important mechanism for helping offenders understand the full 
impact of their criminal behavior on victims. The offender 
should be held accountable for restoring the victim and the 
community as much as possible to their pre-offense economic 
condition. Restitution is the primary tool for accomplishing 
this goal.
    It is for these reasons that 10 years ago Congress passed 
the Mandatory Victims Restitution Act. In passing that act, 
Congress intended to, quote, ``ensure that the loss to crime 
victims is recognized and they receive the restitution they are 
due,'' end quote, as well as to ensure the offender realizes 
the damage caused by the offense and pays the debt owed to the 
victim. This was critical legislation, but we must do more and 
better.
    The victim is the only person in the entire criminal 
justice system process that did not choose to be here, and the 
victim is the one with the most at stake. Victims should never 
be surprised by a system that is designed to provide them 
justice. Issues arising with offender nonpayment or late 
payment should be shared with the victim within the confines of 
confidentiality.
    This Criminal Restitution Improvement Act of 2006 would 
provide mandatory restitution for all Federal offenses, which 
we support. This is an improvement to current laws; it provides 
mandatory restitution for all Federal offenses. The act enables 
the victim to obtain restitution for losses incurred as part of 
the criminal episode and not just from the convicted offense.
    In closing, I'd just like to read a quote that I have on my 
office wall, it's from the great Nobel Prize-winning author and 
Holocaust survivor Elie Wiesel, who said, ``We must take sides. 
Neutrality helps the oppressor, never the victim. Silence 
encourages the tormenter, never the tormented.'' It's time that 
we are no longer silent when it comes to collection and 
enforcement of restitution. Thank you.
    Mr. Coble. Thank you, Mr. Levey.
    [The prepared statement of Mr. Levey follows:]

                   Prepared Statement of Daniel Levey




    Mr. Coble. And Mr. Felman, I'm advised now that the panel 
is functioning properly, so when the amber light appears, 
that's your 1-minute warning. Good to have you, Mr. Felman.

 TESTIMONY OF JAMES FELMAN, PARTNER, KYNES, MARKMAN & FELMAN, 
   P.A. AND CO-CHAIR, COMMITTEE ON CORRECTIONS AND SENTENCING

    Mr. Felman. Thank you, Mr. Chairman, Ranking Member Scott, 
other distinguished Congressmen, it's an honor to have this 
opportunity to speak to you today about this important issue of 
restitution.
    As a practicing criminal defense attorney in the trenches 
of our criminal justice system on a daily basis, I have 
concerns about the bill's provisions.
    I cannot agree that it is a good idea to expand mandatory 
restitution without regard for the defendant's actual ability 
to pay it. The bill would needlessly inhibit rehabilitation by 
offenders who are attempting to reenter society after often 
very lengthy periods of incarceration.
    The bill would greatly complicate sentencing proceedings 
with the addition of many fact findings, all given that most 
defendants are indigent and unable to make the payments anyway 
and will not be sufficient to warrant the use of those 
resources.
    The bill will also result in an inefficient allocation of 
other scarce criminal justice resources, as prosecutors are 
diverted from their jobs of investigating and prosecuting 
crimes to acting as essentially civil collection agents.
    Finally, there are at least two aspects to the bill that I 
believe are clearly unconstitutional. With respect to mandatory 
restitution, it sounds good in theory, but in practice we know 
that roughly 85 percent of defendants are indigent before they 
get prosecuted, and I would have to assume that a greater 
number of that are indigent after they have been prosecuted and 
served time in prison. The problem with ordering people to pay 
what everyone knows they can't pay is then they simply have no 
incentive to try, because they know that they'll never be able 
to pay all of their restitution, and so their incentive is to 
simply do the bare minimum.
    And that's what I see every day. People are like, why 
should I go out and get a job that will pay me more money? All 
the probation officer is going to let me keep is enough to pay 
my bare expenses. My guess would be that mandatory restitution 
may result in less victim compensation and not more. I would 
certainly love to see that issue studied.
    It also inhibits an offender's rehabilitation because, I 
agree that it's good for defendants to be able to make 
restitution, what's bad for defendants is to be saddled with an 
amount of restitution that everyone knows they can never pay.
    The two unconstitutional parts of this bill are the 
provision that provides for restitution without a conviction. 
This bill, for the first time in our Nation's history, would 
authorize--would mandate courts to order restitution for 
conduct for which the defendant has been neither charged nor 
convicted, and perhaps even acquitted.
    And I was surprised to see that, because I knew that in 
1984 this body, the House of Representatives, put in a report--
it's H.R. Report number 98-1017--quote: ``To order a defendant 
to make restitution to the victim for an offense for which the 
defendant was not convicted would be to deprive the defendant 
of property without due process of law.'' I think it's pretty 
clear-cut. It's also just wrong and unfair. You shouldn't be 
punished for something you haven't been charged with, or 
convicted of.
    Lifetime supervision will be routine in virtually every 
case now because the bill provides that supervised release and 
probation must continue indefinitely until the restitution 
obligation that has been ordered without regard to their 
ability to pay has been satisfied. Given, as I said, that 85 
percent of defendants are indigent, none of them will be able 
to ever satisfy their restitution fully. So this bill will 
essentially provide for a lifetime supervision of everyone. 
That will be an incredible expenditure of resources for very 
little benefit, and to the tremendous detriment of the 
defendant, again, no incentive to rehabilitate themselves. No 
matter what they do, no matter how they behave themselves, they 
will be under supervision for life, they'll never really be 
free.
    It's unconstitutional under Apprendi because right now 
there are statutory maximums to the terms of supervised release 
and probation. And this bill would allow a judicial fact-
finding of restitution to then expose the defendant and in fact 
mandate that the defendant receive a term of supervised release 
or probation in excess of the otherwise existing statutory 
maximum.
    Another unwise aspect of the bill is to expand restitution 
to include consequential damages. As any civil practitioner 
knows, issues of consequential damages are limited only by the 
imagination. And so you'll have issues of attorneys fees. Who 
likes litigating attorneys fees issues?
    So we're going to now have attorneys fee litigation in 
every restitution hearing, we're going to have how much did the 
defendant lose from not being at work, what's his salary, how 
many days did he really need--the victim, rather--how many days 
did he really need to take off work for this? An incredible new 
array of fact-finding, all for nothing, because at the end of 
all that process nobody's got any money to pay it. So it sounds 
great to measure all of these things and to go through all of 
that work, but there's no money to pay it.
    I also would not approve of mandated joint and several 
liability, and I think we should tread very carefully about 
disclosing any part of presentence investigation reports, which 
is what this bill for the first time would permit. Thank you, 
Mr. Chairman.
    Mr. Coble. Thank you, Mr. Felman.
    [The prepared statement of Mr. Felman follows:]

                 Prepared Statement of James E. Felman




    Mr. Coble. Thank you all, gentlemen.
    Gentlemen, we impose the 5-minute rule against us as well, 
so if you all can keep your questions rather tersely.
    Mr. Beloof, in your testimony you recommend that the act 
include a provision for the preservation of the defendant's 
assets. Elaborate a little more in detail on that end, and tell 
us why you think this is significant.
    Mr. Beloof. Well, of course, it takes many months, 
sometimes over a year, for criminal cases to come to 
resolution. And during that period of time there is the--the 
defendant has the opportunity to disperse their assets. 
Preserving their assets makes the probability of restitution 
collection much greater.
    I know that the Department of Justice has requested this 
provision in a letter to the Speaker of the House, and I 
strongly support their request for it. This can be--particular 
significant sums of assets can be obtained or frozen in white 
collar crime cases.
    Mr. Coble. I thank you, sir.
    Mr. Levey, let me put a two-part question to you.
    Based upon your own experience and your interaction with 
other crime victims, describe the financial impact of crime, 
particularly the victims of violent crime, A. And B, what do 
you say when one would say, well, listen, the offender has 
already paid his debt to society; don't you think an active 
prison sentence is sufficient? Why lean on him for further 
restitution?
    Mr. Levey. Mr. Chairman, Members of the Committee, the 
financial impact of crime, especially of violent crime, in my 
experience is obvious, it's devastating, it's not--you know, 
crime is not a 1-hour TV show or book that we read. The ripple 
effect and the financial impact is endless. And it's not only 
the obvious economic loss that the victim suffers, but it's the 
things also that aren't covered under restitution as well. So I 
would say, while it's a piece of the puzzle, restitution is 
very important to crime victims.
    And, you know, it's--I think it goes toward the 
accountability. And whether they have the means to pay it or 
not I think is somewhat moot, because the victim didn't ask to 
be in this position, they may not have had the money to lose, 
and it was taken from them in one way or another.
    And on the other piece, I'm sorry, it was regarding the 
offender----
    Mr. Coble. Yeah. What do you say--after all, the defendant 
has already paid his debt to society, he's served an active 
prison sentence, get off his back; why do you want to let him--
I'm just paraphrasing now.
    Mr. Levey. Right. Well, I say to that, until they pay the 
economic loss--the prison sentence or the probation term is 
just one facet of their sentence--they need to complete their 
restitution as well. It's not just hollow words on paper that a 
judge orders. Victims should be allowed to recoup the economic 
loss. And so you haven't paid your debt to society if you've 
just done your prison term.
    Mr. Coble. Mr. Felman, do your concerns regarding mandatory 
restitution remain intact, despite the court's authority, under 
the current law and the bill, to establish a payment schedule 
or order some sort of nominal periodic payments? Does that give 
you any comfort?
    Mr. Felman. Not as much as I'd like. Obviously you can 
establish a payment schedule and you can order nominal 
payments, but the end result is the same. The restitution 
obligation will not be satisfied because it does not bear any 
relationship to the defendant's ability to satisfy it. What is 
the point of ordering a defendant to pay an amount of money 
everyone knows they cannot pay? And of course there is always 
the argument, well, what if he wins the Lotto? And of course 
I'm all in favor of the current law or the law under the bill 
where, if the defendant's economic circumstances change, they 
must advise the court of that and the court can then adjust the 
restitution accordingly. I'm just trying to talk about a policy 
that makes sense here. Let's give people a target they can hit.
    Mr. Coble. Professor Beloof, how does extending--strike 
that--no, I'll proceed with that. How does extending probation 
or supervised release improve the process of collection of 
restitution?
    Mr. Beloof. Well, it improves the process of collecting 
restitution because it allows the courts to participate in the 
collection--or the criminal courts to participate in the 
collection of restitution. The alternative to that is for 
victims to pursue the judgment in the courts and puts the 
burden on them of collection. So what it does is it makes more 
efficient for the victim the collection of restitution.
    And I'd like to add one more thing. I think what we're 
discussing here or what the fundamental values we're concerned 
about are, and I think the fundamental values we're concerned 
with here are the values of standing by the crime victim and of 
maximizing the opportunity for restitution from them. They are 
the people whom an intentional crime was committed against.
    Congress has--well, I'll stop there.
    Mr. Coble. Well, my red light appears.
    I'm pleased to recognize the distinguished gentleman from 
Virginia, Mr. Scott.
    Mr. Scott. Thank you, Mr. Chairman. And Professor Beloof, 
I'd like to follow up on that.
    First of all, you mention the fact that under present law 
you can't jail someone for nonpayment of something they can't 
pay; does this bill change that law?
    Mr. Beloof. No, it doesn't change the law of the Supreme 
Court, sir.
    Mr. Scott. Okay. You also mention maximizing restitution. 
What is the likelihood that you'd be able to get any more money 
out of people who cannot meet the present standards of 
restitution, particularly in light of the fact that almost 90 
percent of restitution is not collected now?
    Mr. Beloof. Well, it would increase the time period in 
which offenders would make minimum restitution payments, so the 
answer would be it would improve it.
    Mr. Scott. What is the present period under which you have 
to make restitution payments? Does the bill change the period 
in which you can make restitution--you have to make 
restitution?
    Mr. Beloof. It changes the period in which courts supervise 
the payment of restitution, yes, criminal courts supervise the 
payment of restitution; it extends that to the life of the 
offender.
    Mr. Scott. And what is the present law?
    Mr. Beloof. The present law is until supervision ends. The 
victim has a judgment that they can continue to enforce after 
that supervision is ended.
    Mr. Scott. Mr. Felman, you mentioned the Apprendi case, and 
I assume the Blakely case would also be implicated. Who makes 
the finding of restitution?
    Mr. Felman. The judge.
    Mr. Scott. And in the bill, it's based on preponderance of 
the evidence. What is the present law on setting restitution?
    Mr. Felman. It is also the case now that the judge makes 
the finding, but it does not violate Apprendi now, because the 
way the courts have construed it, there isn't any maximum 
amount of restitution. So therefore, whatever amount of 
restitution the judge sets does not change the maximum 
punishment that the defendant knows he is entitled--he could 
get in the absence of that judicial finding.
    The reason this bill would violate the Constitution is 
because precisely it extends the period of supervised release 
and probation beyond the otherwise existing statutory maximum 
penalty. So it will increase defendant's punishments above the 
otherwise applicable statutory maximum based solely on judicial 
fact-finding.
    Mr. Scott. And is that the same rationale for the problem 
you have with criminal conduct in the same episode that you're 
finding--the judge is finding guilt on preponderance of the 
evidence that the jury didn't find?
    Mr. Felman. It's similar, but also worse. It just simply 
runs into the core of fifth amendment due process. The other 
concern is the sixth amendment one in terms of your right to a 
jury trial. Now we're implicating not just the sixth amendment, 
but also the fifth amendment. You're talking about punishing 
someone for something they've not been charged with or 
convicted of. And I think this body has recognized--and I don't 
think it will take courts long to recognize--that that violates 
the Constitution.
    Mr. Scott. What's wrong with publication of the presentence 
report?
    Mr. Felman. Well, I think that we want to tread very 
carefully there. Right now PSRs are the most sacred document in 
our system. In many jurisdictions the defendant himself is not 
allowed to have a copy of the PSR. Counsel may review it with 
their client, but counsel are typically required not to share 
the PSR even among co-counsel; they're often required to return 
it at the conclusion of the case. The reason is that we want to 
give every protection possible to the contents of that document 
so that the judge can get the maximum amount of information 
possible. And anytime you're disclosing to third parties and 
outside people the information that's in that report, the 
quality of the information and the ability to gather the 
information will suffer. Right now, no one is entitled to see a 
PSR other than the parties. And this bill would for the first 
time authorize the release of portions of the PSR--and it's 
somewhat vague as to which portions--to third parties, who then 
presumably could publish them to the world.
    Mr. Scott. The bill provides for pretrial freezing of 
assets. What would this to do an ongoing business, the right to 
retain counsel, and how much could you freeze?
    Mr. Felman. I don't know the answer to any of those 
questions. I think it would all have to be litigated and sorted 
out. I mean, there's already a right of pretrial restraint of 
proceeds of crime, and there are exceptions to that that are 
limited for attorneys fees. There sometimes is a bit of a 
battle, frankly, between the Government and the victims. I 
mean, the Government forfeits--if you want to know where the 
money could come from to pay all this restitution, I routinely 
see the Government come in and forfeit all the defendant's 
assets, and they keep it and the victims get nothing. I think a 
fruitful avenue of examination would be where is all the 
forfeiture money going?
    Mr. Scott. Mr. Beloof, can you address that question, the 
pretrial freezing of assets; what would it do to somebody's 
ongoing business? Whether it implicates your ability to retain 
counsel, and how much could you freeze?
    Mr. Beloof. Yeah, I think that the answer is it could 
impinge on the ability to do ongoing business, depending upon 
whether the business entity itself was indicted. Typically, 
individuals are indicted, so it's more likely that it would 
infringe on the individual defendant's ability to disperse 
their assets. But certainly where a business itself was 
indicted, it might affect their ability to conduct business.
    Mr. Scott. Mr. Chairman, if I could, if you're self-
employed----
    Mr. Beloof. That would affect your ability to do business.
    Mr. Scott. Pretrial.
    Mr. Beloof. Pretrial after you were indicted.
    Mr. Scott. Thank you.
    Mr. Coble. I thank the gentleman.
    We've been joined by the distinguished lady from Texas, Ms. 
Sheila Jackson. Very good to have you with us, Sheila.
    The distinguished gentleman from Ohio.
    Mr. Chabot. Thank you, Mr. Chairman.
    As one whose name gets butchered around this place quite 
frequently, Professor, before I do it I've heard several 
pronunciations. Could you say your name, please, for me?
    Mr. Beloof. It's Beloof, sir----
    Mr. Coble. My apologies to you, Professor.
    Mr. Beloof. No, you were doing it well, I thought.
    Mr. Coble. Thank you for exposing me, Mr. Chabot.
    Mr. Chabot. That's all right.
    Professor--it's probably easier to just say Professor 
anyway--the gentleman, Mr. Felman here, has alleged that this 
particular piece of legislation, in his view it's 
unconstitutional in several aspects. Could you respond to that?
    Mr. Beloof. Yeah. Well, I think, first of all, restitution 
without a conviction happens all the time. It's done in plea 
bargain settings; defendants agree to pay restitution on 
unindicted crimes. And my guess is that this legislation 
allows, simply facilitates the ability of courts to order that 
restitution. It's stipulated to all the time.
    In the narrow question in those cases where it goes to 
trial, I expect there might be some issue as to whether the 
court could order restitution on a crime for which there wasn't 
a conviction. That would be the vast minority of crimes, and I 
would expect that this provision would be interpreted to avoid 
that small potential constitutional problem.
    In terms of lifetime restitution obligation supervision, I 
see no constitutional problem with that. You'll be passing a 
statute that postdates the probationary terms and other laws, 
and courts typically interpret statutes that have the potential 
to be in conflict not to have constitutional problems. Since 
this will be the most recent statute passed, I suspect that 
this statute will prevail over the other statute, and a 
constitutional confrontation will not occur.
    Mr. Chabot. Thank you. Professor, and Mr. Levey, if I could 
ask both of you this, Mr. Felman also made the statement that 
he felt that this legislation--if you have somebody in prison, 
that there may be a disincentive for them to attempt to pay 
anything or to better themselves because they're going to have 
this hanging over them their whole lives and they won't be able 
to ever pay it off, so why bother? And that's when I saw both 
of you writing sort of frantically when that statement was 
made.
    Mr. Levey, how about if we----
    Mr. Levey. Sure. Well, my response, Mr. Chabot, and 
Chairman, Members of the Committee, would be that we don't 
order restitution just because we think it may or may not get 
paid; we pay it for the economic harm that the victim suffered. 
We know that the victim lost that money for whatever reason, 
and to think that an inmate would not pay because it's too high 
of an amount or they don't feel that they're ever going to be 
able to pay it off, I think it's about accountability and 
responsibility that the inmates should take for their crimes. 
And so I think that that's a weak argument that there's not a 
likelihood that they'll pay it. I mean, what if they do pay it?
    Mr. Chabot. Professor?
    Mr. Beloof. Well, it's interesting. You know, if you look 
at other policies that Congress has passed, I mean, it's now 
virtually impossible for a student who has taken out a loan to 
declare bankruptcy. It's curious to me that we would want to 
allow an offender to have some equivalent bankruptcy kind of 
argument, that is, not be obligated to repay their restitution 
when they have committed an intentional criminal act.
    So I agree with Mr. Levey, this is about accountability, 
it's about prioritizing the interest of victims over the 
convenience of Government and over the accommodations of the 
criminal defendant. It's really a question of fundamental 
values, where you come down on it.
    Mr. Chabot. It's also my understanding that about 95 
percent of the people that are in prison right now will someday 
be out. Many of those will be gainfully employed at some point. 
And it's also my understanding that the amounts that are being 
paid are about--sometimes well under $100 a month; so they're 
not taking all the money, they're taking a portion of it.
    Let me conclude. Mr. Levey, a few months ago I happened to 
have an opportunity to visit the headquarters of Parents of 
Murdered Children, and I was told that this really amazing 
group handles as many as a thousand calls a week from family 
members that are affected over the loss of a loved one--not 
that there's a thousand murders, but there are ongoing cases, 
et cetera.
    From your personal experience, in addition to your role as 
President of Parents of Murdered Children, could you explain 
for the Subcommittee both the tangible and intangible loss that 
crime victims experience, and how restitution is important to 
the healing process of victims and their families?
    Mr. Levey. Sure. You know, the intangible things are you 
don't have the comfort of your loved one anymore, you don't 
have the things that were in your life, and yet you must go on. 
And so the emotional strain that crime puts on victims is 
oftentimes insurmountable. The prevalence of drug abuse and 
alcoholism amongst survivors, divorce, is huge. The intangibles 
are a sense of justice and the feeling that someone is going to 
be held accountable. I would say that's intangible, you can't 
put your hands on it, you can't touch it or feel it, and yet 
you're thrust into a system that is often not as swift, severe, 
and certain as we learned in our civics class.
    And some of the tangible things, the obvious things, are 
the person in violent crime, in murder, is no longer with you, 
the economic loss. And it's important because whether they can 
pay it or not, it's symbolic for many victims to know that 
whether they're paying 10 cents a week or whatever it is, that 
every time they pay that money, they're thinking about their 
crime, hopefully, and thinking about their victim.
    And so it's very important that victims hear that 
restitution is ordered, one, for the loss that they had. I 
mean, to me it would be unconscionable, almost like another 
crime if I lost $100,000 as a fraud victim, and yet because the 
court felt the likelihood of the defendant paying is not good, 
we're going to only order 50,000 at a lower rate. It just 
doesn't seem right.
    So I guess if I summed it up, you know--there's almost too 
much to put your hands around, but I guess if I had to sum it 
up I would say that restitution is meaningful in the sense 
that, one, it pays for the economic loss; but two, it may be in 
many respects it's symbolic that the offender, postconviction 
and postsentencing, is going to be thinking about their victim 
every time they pay restitution.
    Mr. Chabot. Thank you very much.
    Mr. Coble. The gentleman's time is expired. The 
distinguished gentleman from Massachusetts, Mr. Delahunt.
    Mr. Delahunt. Yes, thank you, Mr. Chairman.
    Mr. Levey, you're aware, of course, that this particular 
legislation in the vast majority of murder cases would not be 
applicable.
    Mr. Levey. Yes, I'm aware. You know, many murder cases, 
they're at the State level----
    Mr. Delahunt. Almost all of them are. You know, I mean, to 
implicate a murder, a charge of murder, into the Federal courts 
is very, very rare.
    Mr. Levey. Well, I work closely with our U.S. Attorney's 
Office in the District of Arizona, and they handle quite a few 
homicides. We have a large Native American population, and 
obviously I know you're aware that the Federal crimes that 
occur, such as Oklahoma City bombings and others, murder does 
happen at the Federal level--not to the degree that the State--
--
    Mr. Delahunt. Let me suggest, maybe--I just think it's 
important for clarity purposes that--and I'm just going to 
throw a number out and either one of the other witnesses can 
respond to it, but I daresay that 97, 98 percent of the 
homicides in this country are prosecuted at the State level, 
and that this particular proposal before us would not apply.
    Professor Beloof.
    Mr. Beloof. Well, the short answer is that Federal 
legislation often establishes a model for the States.
    Mr. Delahunt. But that doesn't answer my question, does it, 
Professor?
    Mr. Beloof. The answer is, I think I have it before me, 
2003, 2004, there were 55 murders, Federal jurisdictions.
    Mr. Delahunt. And thousands, tragically, of murders in the 
State system. I just think it is important to recognize that 
point.
    Mr. Beloof. Correct.
    Mr. Delahunt. Because we don't want to confuse anyone that 
may be watching this particular hearing to think that murder 
victims would benefit in the overwhelming majority of cases. 
That just simply wouldn't happen.
    I have a question for Mr. Felman.
    Taking that premise that 99 percent of murder cases, most 
crimes of violence, this legislation would probably prevail 
mostly in white collar crimes; would you agree with that?
    Mr. Felman. I think that's correct; most economic crimes 
would be the crimes in which restitution would be ordered.
    Mr. Delahunt. Would you agree with me that the likelihood 
of white collar defendants having the capacity to return into 
society and earn a living that would allow them to meet 
restitution norms or standards would be a lot more likely than 
it would be at the State level?
    Mr. Felman. I think that's correct. It depends on what you 
mean by restitution norms and standards.
    Mr. Delahunt. Well, whatever the court decided.
    Mr. Felman. Well, if the court had the discretion to take 
into account anything about the defendant or his capacity, then 
yes.
    Mr. Delahunt. I guess what I'm going to is the changed 
economic conditions I daresay are very rarely enforced. And 
again, I'm just reading the bill for the first time. But do you 
have a problem in terms of post-termination of probation, some 
remedy for a crime victim to return into--the Federal court in 
this case--and demonstrate to the probation officer, without 
going through a lengthy fact-finding, that the defendant who 
defrauded the victim of substantial savings is now in a 
position to fully compensate the victim?
    Mr. Felman. I think that is true under existing law. I 
don't think it is related to the period of supervision. I think 
3663 A(k) is the part about material change of circumstances, 
and it is not tied to the period of release. What I think 
victims could benefit from is the ability to reach a settlement 
agreement with the defendant. There are circumstances out there 
where a defendant is able to borrow money from somebody to pay 
off----
    Mr. Delahunt. I understand that. What I am saying is there 
are far too many sophisticated criminal defendants that know 
how to gain the system that leave victims uncompensated, 
particularly in the area of economic or white collar crime so 
that, you know, a victim is disadvantaged permanently without 
really a genuine recourse, because you know Federal probation 
departments; they don't take the time. And I am not saying they 
don't have the resources to go out and make a determination 
that circumstances have changed. And I think that really is 
egregious.
    Mr. Felman. I think I agree with you. But I think it is 
already covered by current law, but settlement agreements are 
not permissible. There is no jurisdiction in the district 
courts to approve a settlement agreement under current law.
    Mr. Delahunt. If it is already covered by current law, that 
then goes to the issue--what you are telling me is that under 
current law--if I could have an additional 30 seconds.
    Mr. Coble. Without objection.
    Mr. Delahunt. If, under current law, the enforcement of the 
restitution that is ordered by the court survives the 
termination of probation----
    Mr. Felman. Well, it gets converted to a judgment, and then 
the Financial Litigation Unit at the U.S. Attorney's Office is 
charged with the enforcement of that. Typically defendants will 
enter into a payment agreement on the side that continues the 
exact same payments they were making while they were on 
supervision.
    Mr. Delahunt. Are you aware of any study that has been done 
in terms of the enforcement post-probation?
    Mr. Felman. No.
    Mr. Coble. The gentleman's time has expired.
    The Gentlelady from Texas, Ms. Sheila Jackson Lee.
    Ms. Jackson Lee. Thank you very much, Mr. Chairman.
    I always try to look for the silver lining in some of the 
work that we do in this Congress. And frankly, I believe that 
some aspects of this initiatives have value to the extent that, 
if you have done wrong and harm to victims and the victims' 
families, that we should not be sympathetic to how much you can 
pay.
    But I want to try to be realistic as well. And I will offer 
into the record, just by reciting the fact that, pursuant to a 
1996 study, victims are impacted in the instance of murder by 
$2.9 million, $87,000 for rape and sexual assault, $8,000 for 
robbery, $1,400 for burglary and $370 for larceny. So there is 
an impact. Mr. Levey, I want to acknowledge and offer sympathy, 
in your circumstances being someone who has lived through this.
    At the same time, we will note that 87 percent of Federal 
restitution is uncollected each year. And, frankly, I think 
that we should find a way to seek common ground where reality 
sinks in and we try to find solutions to that huge gap. In 
fact, I am looking for the number which I think is billions of 
dollars, and I will find that shortly.
    So I raise these questions, and I would like Mr. Felman to 
talk again about his thoughts about the fact that a part of the 
legislation in this bill points to defendants that are neither 
charged nor convicted. Would you offer your comments on that? 
Now remember, people listening are saying, well, you are 
dealing with criminals, so why worry about that? They were 
around the scene. Somebody thinks they might have been 
involved. What is the constitutional issue or any legal issue 
that would cause us to pause because of that provision in the 
bill? And might I just put on the record that the outstanding 
criminal debt since 2001 is probably more. It has ballooned to 
$13 billion.
    [The prepared statement of Ms. Jackson Lee follows in the 
Appendix]
    Mr. Felman. Well, I agree with Professor Beloof that in a 
circumstance in which it is a part of the plea agreement, that 
restitution will be made for conduct not charged and for which 
the defendant was not convicted. That will not violate the 
Constitution because that is being done with the defendant's 
consent.
    Ms. Jackson Lee. That is accepted?
    Mr. Felman. No question about that. That is in the distinct 
minority of cases. Typically speaking, nobody knows what the 
restitution is until after the defendant has pled and you are 
getting to the sentencing proceeding. That is what is lost, I 
think, sometimes. Prosecutors don't have the time to have their 
agents go out and figure out what all of the different victims' 
losses are before a sentencing hearing. Their job is to convict 
this defendant. The restitution will get figured out later.
    It is, I think, the rare exception where everyone knows 
what the restitution amounts are and they are put in a plea 
agreement. And in every case in which--I don't understand the 
fascination with punishing people for things they have not been 
charged with and have not been convicted of. And it is not like 
there is any limit that is available here. We have got 
conspiracy law. You charge somebody with a conspiracy. You 
convict them of a conspiracy or get them to plead guilty to a 
conspiracy. They are liable for all losses caused by any member 
of that conspiracy whose act was reasonably foreseeable to them 
and was undertaken in the course of the common scheme. It is a 
huge web. And if you can't fit your loss into that web, then I 
think we need to think again about whether that is something 
that we need to be ordering.
    Ms. Jackson Lee. In essence, what we are having is a 
fishnet out, throwing the fishnet and grabbing anybody who 
might have been walking by the crime scene. If we wanted to be 
serious about responding to, I think, the eloquence and the 
realness of Mr. Levey's situation as he speaks on behalf of 
victims, I want them to, one, see the criminal justice system 
work on their behalf fairly, and I think restitution is valid.
    A provision like this carves away a reasonable bipartisan 
perspective which says let's find a way to make sure that $13 
billion doesn't sit out there, and let's not have 87 percent of 
the restitution not being paid. Getting people who are not 
indicted seems to me, Federal or State level, bears on people's 
constitutional rights.
    I would like to ask Professor Beloof whether or not this 
whole idea of continuing to hold people in supervised release 
and lack of probation until they pay. Particularly if we note--
I would like to ask an additional minute.
    Mr. Coble. Without objection.
    Ms. Jackson Lee. Particularly, as we have noted that most 
of these people are indigent, have Federal defenders, et 
cetera, can we find a better way? And I would like Mr. Felman's 
thoughts on that. In addition to restitution, then, what is 
happening is, even though a lot of cities were looking to the 
forfeiture dollars, we don't get them. I would still like to 
know where those forfeiture dollars go. But if you forfeit 
property of a defendant, why can't some of those resources be 
included as restitution to the victim?
    The victim should be made whole. I don't quarrel with that 
issue. No one can stand and choose a victim's--whether they 
survive the criminal act or whether or not their families have 
to live with their death. But this kind of feudal hostage 
indentureship certainly, I think, has constitutional problems. 
Professor----
    Mr. Beloof. I have a----
    Ms. Jackson Lee. I would like you to be able to respond 
first.
    Mr. Beloof. I would agree with you, Representative Lee, 
that the payments to victims should be prioritized over fines 
or recovery for Government. I do not agree that the extension 
of probation to collect restitution is futile. Your comment 
that----
    Ms. Jackson Lee. Feudal system.
    Mr. Beloof. Or feudal, not futile. In a feudal system, 
frankly--well, I won't tell you what would have happened.
    Ms. Jackson Lee. That is all right. We are close to it.
    Mr. Beloof. But you have talked about reality, and I think 
it would be good for the Committee--I support this bill 
strongly--to step back and look at what is being done to 
collect.
    Mr. Coble. Professor, I don't want to put you all in a 
straight jacket. We are going to have a vote at about 11:00, so 
if you could be brief. I want to have a second round as well.
    But go ahead, Professor.
    Mr. Beloof. I think an assessment by this Committee and 
staff about things like forfeiture and what resources are 
available to the Federal Government to assure collection and 
how that is done is a laudable notion.
    Ms. Jackson Lee. Quickly, Mr. Felman, could you respond on 
that payment system?
    Mr. Felman. We need to look at where the forfeiture dollars 
are going because, in my experience, I see a lot more money 
going into forfeiture, and I don't know where that money goes 
either.
    Ms. Jackson Lee. What about not releasing individuals 
because they have not paid?
    Mr. Felman. If it was tied to the amount they could 
actually pay and if the judge was saying, I think, that in your 
lifetime, if you work this hard, you can pay this; if we let 
the judge actually make some rational assessment of what 
somebody could actually pay, I might be more inclined to look 
at that. The problem is that by definition the person's ability 
to pay is simply not relevant. So we know that the reason why 
the amount of uncollected restitution exploded after 1996 is 
that we started ordering amounts that everyone knew couldn't be 
paid.
    Ms. Jackson Lee. So that is a good amendment for this bill.
    Mr. Felman. If we got rid of the mandatory nature of it, 
that would be a huge step in my opinion. At least, let's study 
it. I would love to see a study on whether making--ordering 
people to pay what they can't pay results in paying any more.
    Ms. Jackson Lee. I thank you. I thank the Chairman.
    Mr. Coble. Thank the gentlelady.
    We are going to go through a second round here, folks. This 
is an important issue. And Mr. Levey, I want to extend what the 
gentlelady of Texas said. We extend our condolences to you 
because you are right in the middle of it more so than the rest 
of us. You have direct exposure.
    Professor Beloof, Mr. Felman expressed some concern about 
disclosing portions of the PSR as it relates to assets. As we 
all know, the PSR is now confined to the parties that are the 
defendant and the Government. What do say you to that?
    Mr. Beloof. Well, I say, first of all, that that is not 
correct that the PSR can be given to anyone or any portion of 
the PSR can be given to anyone at the judge's discretion. I 
would note that Congress has recently overwhelmingly passed the 
Crime Victims Rights Act which provides for full and complete 
restitution. That was in October of 2004. It was signed by the 
President, the most recent affirmation of full and complete 
restitution. And in order for victims to adequately speak at 
sentencing and seek restitution, courts should now and can now 
in their discretion be allowing portions of the PSR to be 
released to victims and their attorneys.
    Mr. Coble. I thank you, sir.
    Mr. Felman, I don't think this was put to either of you 
witnesses. How does a court's extension of probation or 
supervised release violate Blakely?
    Mr. Felman. Because, under current law, there is a 
statutory maximum term of probation that is permitted to be 
imposed, and it is 5 years. In the absence of any--that is the 
statutory limit on the term of probation. It is 5 years. For 
supervised release, depending on the classification of the 
felony, it is either 2 years, 3 years, 4 years or 5 years. What 
this would do is say that, based upon a judge's finding of fact 
with regard to an amount of restitution, that if that 
restitution exceeds the defendant's ability to pay it during 
the period of the statutory--the otherwise authorized statutory 
period of probation--that additional punishment will therefore 
be visited upon the defendant; that is a period of supervised 
release or probation in excess of the statutory maximum penalty 
that would apply in the absence of that judicial fact-finding 
solely based upon the judge's fact finding. And my reading, I 
mean, you know, you never know what the Supreme Court is going 
to do, but my reading of Apprendi, Blakely and Booker would be 
that that would squarely present a very significant sixth 
amendment issue.
    Mr. Coble. I don't want to simplify this, but as far as 
restitution is concerned, I don't want criminals to be able to 
conclude, well, I am going to go knock off a bank or I am going 
to go kill someone and not have to answer to it. That is the 
part that I want to keep in the forefront.
    Thank you, gentlemen.
    The gentleman from Virginia.
    Mr. Scott. Thank you, Mr. Chairman.
    Professor Beloof, can a defendant plead--file bankruptcy to 
discharge debts incurred in an institutional crime?
    Mr. Beloof. Not anymore, sir.
    Mr. Scott. Were they ever able to do it?
    Mr. Beloof. Yes, they were.
    Mr. Scott. When?
    Mr. Beloof. Well, I guess this issue first came across my 
desk about 14 years ago in a case in which I represented a 
State court judge, and since then, Congress has moved to 
eliminate bankruptcy for intentional criminal conduct.
    Mr. Scott. Okay. Following up on the question of extended 
probation, what would be the enforcement mechanism after the 
otherwise statutory maximum time for supervision? Would the 
defendant be subject to jail for nonpayment even if he could 
pay after that maximum period of time?
    Mr. Beloof. If he could pay?
    Mr. Scott. If he could pay.
    Mr. Beloof. Under this bill?
    Mr. Scott. Right.
    Mr. Beloof. I believe so.
    Mr. Scott. He could be jailed.
    Mr. Beloof. I believe so, if he could pay.
    Mr. Scott. If he had the ability to pay and didn't pay 
after the statutory maximum period of supervision otherwise 
available in law.
    Mr. Beloof. I believe so, sir.
    Mr. Scott. Mr. Felman, is that your view, too?
    Mr. Felman. No doubt about it.
    Mr. Scott. Does anyone have a study to show that this bill 
would actually increase or decrease the amount of money 
actually paid?
    Mr. Beloof. There is, to my knowledge, there is no study.
    Mr. Scott. Does anyone have access to a study that would 
show that this would actually increase or decrease recidivism?
    Mr. Beloof. This particular bill, I don't believe there has 
been a study on this particular bill, sir.
    Mr. Scott. Thank you.
    Mr. Coble. I thank the gentleman.
    The distinguished gentleman from Ohio.
    Mr. Chabot. Thank you, Mr. Chairman.
    I would just first note that we pass bills all the time 
around this place where we don't have a study that indicates 
exactly what is likely to happen, and sometimes, common sense 
tells us that if you do one thing, there will be an----
    Mr. Scott. Would the gentleman yield?
    Mr. Chabot. Yes, I would be happy to yield.
    Mr. Scott. We have actually passed bills where the studies 
showed our actions would actually increase crime.
    Mr. Chabot. In reclaiming my time, we have passed many 
bills around here, and we have had studies. We have also 
oftentimes had studies where this study says you are going to 
have this result; or you had this result, and you have another 
study that is completely opposite of that. And we have the 
ability around here to pick some studies over others or 
disregard all of them, but I don't think the fact that there 
hasn't been an independent expensive taxpayer-paid study that 
is going to say what is going to happen as a result of this 
really amounts to anything.
    And I might also add that I have--we were talking before 
with the Ranking Member, that we actually agree on a number of 
things besides the Federal prison industry, the Voting Rights 
Act, the Black farmers issues and others as well. This is one 
that we happen to disagree on.
    My friend, Mr. Delahunt, before, I think, made some point 
about indicating rightly that most crimes that are committed in 
the United States are dealt with at the State level or at the 
local level because they are not Federal crimes, although there 
are Federal crimes that do have an impact on the lives of the 
American people. Look at the Oklahoma City bombing, as Mr. 
Levey mentioned, for example. But there are about 55 murders 
every year where there is Federal jurisdiction, and it is my 
understanding, according to a study, that in about 38 percent 
of those murders, there was no fine, no restitution or anything 
else. And those are the types of cases that this would plug up 
the hole.
    I would also mention, there are an awful lot of fraud cases 
which are Federal crimes. According to a study, apparently 
there were 5,364 fraud cases at the Federal level and in only 
about a third of those, 30 percent, were there any fines or 
restitution in those cases. But as I believe Professor Beloof 
also mentioned, just because the crimes are committed at the 
State level, if we pass a law here in Washington, oftentimes 
what we do here doesn't get attention and State officials look 
and they say, well they did this at the Federal level, and why 
don't we do this in this State or this State? So what--we do 
have impact sometimes for the good and sometimes for the bad.
    So getting back to that whole line of thought, Professor, 
if you could just comment on this idea about the number of 
crimes at the Federal level. Most crimes are actually at the 
State or local level, and what would be the impact something 
like this could have over and above just those people that 
would be directly affected in the Federal court system?
    Mr. Beloof. I know that the most recent significant crime 
victim law Congress has passed is grabbing the attention of 
State legislators and State Governors. And I have been 
consulted by several Governors' offices and legislative 
officers who are seeking to enact more meaningful victims' 
rights laws as a result of the overwhelming support for that 
statute in both the Senate and the House. So Federal approaches 
to criminal justice are--can be very significant in the States.
    Mr. Chabot. Thank you.
    And I have just been handed a study here also--Cynthia 
Kempinen, it is called, ``Payment of Restitution and 
Recidivism''--that indicates, at least this study says that 
paying restitution does decrease recidivism.
    And going back to you, Professor, could you, again, just 
remind us, because sometimes we get sort of far field, what--
why we have restitution and just what it is, what holes we are 
trying to plug here. What have been the problems, and what are 
we trying to solve by this particular piece of legislation?
    Mr. Beloof. Part of the problem has been the collection 
problem. And much of what is solved in this bill is making more 
efficient collection. The suggestion that we pre-freeze assets, 
facilitating probation officers, collection of information for 
the courts, providing the prosecutors' office with more tools 
to facilitate the collection, removing some of that 
information, collection out of the courtroom and into the 
administrative and executive branches. These things are all 
going to facilitate the collection of restitution.
    In addition, the extension of time simply lengthens the 
time, the probability, I believe, increases the probability of 
the time during which offenders are going to continue to pay 
that restitution.
    Mr. Chabot. Thank you.
    Mr. Coble. I thank the gentleman.
    Ms. Jackson Lee, do you have another round?
    Ms. Jackson Lee. Thank you.
    Let me ask Mr. Levey just your vision, your passion and 
again my acknowledged sympathy for your loss. What would you 
like in terms of getting a bill passed? What would be your 
instruction? What can we do? You said--you heard what I said, 
$87 billion--$13 billion, I am sorry, not paid and 87 percent 
of the restitution not paid. What would strike the appropriate 
response for you?
    Mr. Levey. Well, I know the answer isn't to not do anything 
to answer the question backwards, but I would like to see that 
number lowered. Obviously, I would like to see a more effective 
enforcement in collection of restitution and some consequence 
like still being under supervision if you don't pay it. It is 
amazing, in Arizona, we can extend restitution at the State 
level or we can extend probation 3 years on the end of their 
term, and you know, a lot of those people do find a way to come 
up with the money when they start to get to the point where 
they are going to be extended. Not all of them, but I don't 
think the burden should be less on the offender. I think 
victims are owed the restitution literally and always by the 
system, and so I don't have a remedy, a magic pill here. I 
think we are moving along the right direction with this type of 
legislation and just ramping it up and making offenders realize 
that this is an important part of their sentence, and it isn't 
going to be discharged because you can't pay it or because it 
is more than you can afford right now. They shouldn't have done 
the crime.
    Ms. Jackson Lee. I think you have, in your words, struck a 
very fair balance. You want something done. This legislation, 
of course, opens the door for discussion. But we can find a way 
to answer, I think, for your concerns as we develop something 
that will work and pass constitutional muster.
    Just quickly to Professor Beloof, and I would like Mr. 
Felman to respond after, and this will be my last question. 
Isn't it possible or isn't there the potential that this 
expanded mandatory restitution may in fact include what is 
perceived to be a consequential damage? Do you see that 
happening?
    Mr. Beloof. Yes, the question--I mean, the question is 
whether, I guess, in the first instance, whether the bill 
allows consequential damages. If it does, and I am not 
confident that it does, it would be only implicitly. If it did, 
I am sure it would be constitutional. I don't think there is a 
constitutional problem with consequential damages.
    Ms. Jackson Lee. Mr. Felman?
    Mr. Felman. I agree there is not necessarily a 
constitutional prohibition on including consequential damages, 
but I think this bill clearly does that. It requires----
    Ms. Jackson Lee. Is that the purpose of the criminal law?
    Mr. Felman. Well, not in my view. I mean, it would be one 
thing if you were going to tailor it to what they could 
actually pay, then we could have an intelligent discussion 
about whether it is worth having to go through all of the 
trouble to litigate consequential damages. Get that. But we 
know nobody is going to be able to pay it, but it will be 
mandated litigated anyway.
    Ms. Jackson Lee. Let me--I think my concluding comment is 
that, why don't we do something that works here? And why don't 
we do something that alleviates the pain of Mr. Levey and many 
other families in order to do that? Why don't we address some 
of the fractures in this bill that I think keep it from 
seriously going forward? I hope to be able to do that.
    Mr. Felman. One improvement that I would think that victims 
might be interested in having is, as I mentioned earlier, is 
the ability to actually settle. In other words, say a victim is 
owed a $100,000, and the defendant only has $10,000, but his 
mom will loan him $90,000 in order to satisfy his restitution 
obligation. Now, no victim has to agree to anything like that. 
Well, that would be a full settlement. Suppose they can 
compromise it. No victim would have to agree to any settlement. 
But right now, the law does not vest a district court with the 
jurisdiction to permit the settlement. And if I am the victim, 
I want to have the opportunity to at least settle if I want to. 
And I think that would be an improvement for the bill, and I 
would think most victims would at least want to have that 
option even if they don't choose to exercise it.
    Ms. Jackson Lee. I want a solution, as I close, for the 
pain of victims. I want somebody that is going to move forward, 
and what I have heard from the three of you is, we can address 
the plight of victims that should be addressed, but we can also 
be realistic and move forward so that victims are truly 
compensated. That is what I would like to say.
    Mr. Coble. I thank the gentlelady.
    Mr. Scott. I would ask the gentleman from Ohio to provide 
the details of the study that he cited, and I would appreciate 
that.
    Mr. Chabot. Be happy to.
    Mr. Scott. There are other studies on mandatory minimums 
and find what juveniles and adults, with a clear consensus of 
mandatory minimums as it wastes the taxpayers' money, in trying 
more juveniles as adults, the clear consensus of those studies 
is that it increases crime. Unfortunately, both poll well, and 
as the gentleman from Ohio has suggested, they tend to pass 
because they poll well, not because they will actually do 
anything about crime. I yield back.
    Mr. Coble. Well, this has been a good hearing, gentlemen. I 
thank you all for being here. I very much appreciate your 
contribution. In order to help ensure a full record and 
adequate consideration of this important issue, the record will 
be left open for additional submissions for 7 days, also 
written questions that a Member wants to submit should be 
submitted within that same 7-day time frame.
    This concludes the legislative hearing on the Criminal 
Restitution Act of 2006. Thank you for your cooperation and 
your attendance as well as those in the hearing room.
    And the Subcommittee stands adjourned.
    [Whereupon, at 10:50 a.m., the Subcommittee was adjourned.]


                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

 Prepared Statement of the Honorable Robert C. Scott, a Representative 
      in Congress from the State of Virginia, and Ranking Member, 
        Subcommittee on Crime, Terrorism, and Homeland Security



                               __________

       Prepared Statement of the Honorable Shelia Jackson Lee, a 
           Representative in Congress from the State of Texas



                               __________

 Prepared Statement of the Honorable Steve Chabot, a Representative in 
                    Congress from the State of Ohio



                                 
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