[House Report 104-16]
[From the U.S. Government Publishing Office]
104th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 104-16
_______________________________________________________________________
VICTIM RESTITUTION ACT OF 1995
_______________________________________________________________________
February 2, 1995.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. McCollum, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany H.R. 665]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 665) to control crime by mandatory victim
restitution, having considered the same, report favorably
thereon with an amendment and recommend that the bill as
amended do pass.
CONTENTS
Page
The Amendment.................................................... 1
Purpose and Summary.............................................. 4
Background and Need for Legislation.............................. 4
Committee Consideration.......................................... 5
Vote of the Committee............................................ 5
Committee Oversight Findings..................................... 5
Committee on Government Reform and Oversight..................... 5
New Budget Authority and Tax Expenditures........................ 5
Congressional Budget Office Estimate............................. 5
Inflationary Impact Statement.................................... 6
Section-by-Section Analysis and Discussion....................... 6
Agency Views..................................................... 8
Changes in Existing Law Made by the Bill, as Reported............ 9
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Victim Restitution Act of 1995''.
SEC. 2. MANDATORY RESTITUTION AND OTHER PROVISIONS.
(a) Order of Restitution.--Section 3663 of title 18, United States
Code, is amended--
(1) in subsection (a)--
(A) in paragraph (1)--
(i) by striking ``may order, in addition to
or, in the case of a misdemeanor, in lieu of
any other penalty authorized by law'' and
inserting ``shall order''; and
(ii) by adding at the end the following:
``The requirement of this paragraph does not
affect the power of the court to impose any
other penalty authorized by law. In the case of
a misdemeanor, the court may impose restitution
in lieu of any other penalty authorized by
law.'';
(B) by adding at the end the following:
``(4) In addition to ordering restitution to the victim of the
offense of which a defendant is convicted, a court may order
restitution to any person who, as shown by a preponderance of evidence,
was harmed physically, emotionally, or pecuniarily, by unlawful conduct
of the defendant during--
``(A) the criminal episode during which the offense occurred;
or
``(B) the course of a scheme, conspiracy, or pattern of
unlawful activity related to the offense.'';
(2) in subsection (b)(1)(B) by striking ``impractical'' and
inserting ``impracticable'';
(3) in subsection (b)(2) by inserting ``emotional or'' after
``resulting in'';
(4) in subsection (b)--
(A) by striking ``and'' at the end of paragraph (4);
(B) by redesignating paragraph (5) as paragraph (6);
and
(C) by inserting after paragraph (4) the following
new paragraph:
``(5) in any case, reimburse the victim for lost income and
necessary child care, transportation, and other expenses
related to participation in the investigation or prosecution of
the offense or attendance at proceedings related to the
offense; and'';
(5) in subsection (c) by striking ``If the court decides to
order restitution under this section, the'' and inserting
``The'';
(6) by striking subsections (d), (e), (f), (g), and (h);
(7) by redesignating subsection (i) as subsection (m); and
(8) by inserting after subsection (c) the following:
``(d)(1) The court shall order restitution to a victim in the full
amount of the victim's losses as determined by the court and without
consideration of--
``(A) the economic circumstances of the offender; or
``(B) the fact that a victim has received or is entitled to
receive compensation with respect to a loss from insurance or
any other source.
``(2) Upon determination of the amount of restitution owed to each
victim, the court shall specify in the restitution order the manner in
which and the schedule according to which the restitution is to be
paid, in consideration of--
``(A) the financial resources and other assets of the
offender;
``(B) projected earnings and other income of the offender;
and
``(C) any financial obligations of the offender, including
obligations to dependents.
``(3) A restitution order may direct the offender to make a single,
lump-sum payment, partial payment at specified intervals, or such in-
kind payments as may be agreeable to the victim and the offender.
``(4) An in-kind payment described in paragraph (3) may be in the
form of--
``(A) return of property;
``(B) replacement of property; or
``(C) services rendered to the victim or to a person or
organization other than the victim.
``(e) When the court finds that more than 1 offender has contributed
to the loss of a victim, the court may make each offender liable for
payment of the full amount of restitution or may apportion liability
among the offenders to reflect the level of contribution and economic
circumstances of each offender.
``(f) When the court finds that more than 1 victim has sustained a
loss requiring restitution by an offender, the court shall order full
restitution to each victim but may provide for different payment
schedules to reflect the economic circumstances of each victim.
``(g)(1) If the victim has received or is entitled to receive
compensation with respect to a loss from insurance or any other source,
the court shall order that restitution be paid to the person who
provided or is obligated to provide the compensation, but the
restitution order shall provide that all restitution to victims
required by the order be paid to the victims before any restitution is
paid to such a provider of compensation.
``(2) The issuance of a restitution order shall not affect the
entitlement of a victim to receive compensation with respect to a loss
from insurance or any other source until the payments actually received
by the victim under the restitution order fully compensate the victim
for the loss, at which time a person that has provided compensation to
the victim shall be entitled to receive any payments remaining to be
paid under the restitution order.
``(3) Any amount paid to a victim under an order of restitution shall
be set off against any amount later recovered as compensatory damages
by the victim in--
``(A) any Federal civil proceeding; and
``(B) any State civil proceeding, to the extent provided by
the law of the State.
``(h) A restitution order shall provide that--
``(1) all fines, penalties, costs, restitution payments and
other forms of transfers of money or property made pursuant to
the sentence of the court shall be made by the offender to an
entity designated by the Director of the Administrative Office
of the United States Courts for accounting and payment by the
entity in accordance with this subsection;
``(2) the entity designated by the Director of the
Administrative Office of the United States Courts shall--
``(A) log all transfers in a manner that tracks the
offender's obligations and the current status in
meeting those obligations, unless, after efforts have
been made to enforce the restitution order and it
appears that compliance cannot be obtained, the court
determines that continued recordkeeping under this
subparagraph would not be useful; and
``(B) notify the court and the interested parties
when an offender is 30 days in arrears in meeting those
obligations; and
``(3) the offender shall advise the entity designated by the
Director of the Administrative Office of the United States
Courts of any change in the offender's address during the term
of the restitution order.
``(i) A restitution order shall constitute a lien against all
property of the offender and may be recorded in any Federal or State
office for the recording of liens against real or personal property.
``(j) Compliance with the schedule of payment and other terms of a
restitution order shall be a condition of any probation, parole, or
other form of release of an offender. If a defendant fails to comply
with a restitution order, the court may revoke probation or a term of
supervised release, modify the term or conditions of probation or a
term of supervised release, hold the defendant in contempt of court,
enter a restraining order or injunction, order the sale of property of
the defendant, accept a performance bond, or take any other action
necessary to obtain compliance with the restitution order. In
determining what action to take, the court shall consider the
defendant's employment status, earning ability, financial resources,
the willfulness in failing to comply with the restitution order, and
any other circumstances that may have a bearing on the defendant's
ability to comply with the restitution order.
``(k) An order of restitution may be enforced--
``(1) by the United States--
``(A) in the manner provided for the collection and
payment of fines in subchapter B of chapter 229 of this
title; or
``(B) in the same manner as a judgment in a civil
action; and
``(2) by a victim named in the order to receive the
restitution, in the same manner as a judgment in a civil
action.
``(l) A victim or the offender may petition the court at any time to
modify a restitution order as appropriate in view of a change in the
economic circumstances of the offender.''.
(b) Procedure for Issuing Order of Restitution.--Section 3664 of
title 18, United States Code, is amended--
(1) by striking subsection (a);
(2) by redesignating subsections (b), (c), (d), and (e) as
subsections (a), (b), (c), and (d);
(3) by amending subsection (a), as redesignated by paragraph
(2), to read as follows:
``(a) The court may order the probation service of the court to
obtain information pertaining to the amount of loss sustained by any
victim as a result of the offense, the financial resources of the
defendant, the financial needs and earning ability of the defendant and
the defendant's dependents, and such other factors as the court deems
appropriate. The probation service of the court shall include the
information collected in the report of presentence investigation or in
a separate report, as the court directs.''; and
(4) by adding at the end thereof the following new
subsection:
``(e) The court may refer any issue arising in connection with a
proposed order of restitution to a magistrate or special master for
proposed findings of fact and recommendations as to disposition,
subject to a de novo determination of the issue by the court.''.
Purpose and Summary
The purpose of H.R. 665, the ``Victim Restitution Act of
1995,'' is to ensure that criminals pay full restitution to
their victims for all damages caused as a result of the crime.
To that end, the bill modifies current law to mandate that
restitution be awarded by the court in most Federal criminal
proceedings.
In addition to requiring that the court order restitution
to the victim, the court is given the discretion to order
restitution to other persons who were harmed physically,
emotionally or financially by the criminals's unlawful conduct.
The court is to determine the amount of restitution based
on the full amount of a victim's losses and is not to consider
the offender's economic status. Moreover, in determining the
amount of restitution, the court is not to consider the
victim's right to other compensation from any other source,
such as insurance proceeds or civil damages.
Court-ordered restitution is not to affect the victim's
eligibility for insurance until such court-ordered restitution
has fully compensated the victim. If a victim seeks additional
compensation through a civil action, any new award from such
action is to be reduced by the amount of the criminal
restitution order.
The Victim Restitution Act of 1995 makes compliance with
the court-prescribed schedule of restitution payments a
condition for probation or supervised release. The victim or
offender may petition the court to modify a restitution order
at any time.
Background and Need for the Legislation
According to the Bureau of Justice Statistics, from 1973 to
1991, 36.6 million people in the United States were injured as
a result of violent crime. In 1992, there were nearly 34
million victims of crime nationally. Each year, one in four
households in the United States is victimized by one or more
crimes. In 1991, crime against people and households resulted
in an estimated $19.1 billion in losses. Crime-related injuries
typically amount for more than 700,000 days of hospitalization
annually. The costs associated with crime--economic, physical
and emotional--for individuals, families, and the country is
enormous.
There has been significant progress over the last 15 years
in addressing the needs of crime victims. Their voices are no
longer missing from the national debate concerning criminal
justice. In spite of this progress, however, additional reforms
are needed. Under existing law, crime victims' rights are still
too often overlooked. Even though the law provides the means to
address the rights of victims, the law does not, however,
provide for a means to make victims whole.
H.R. 665, the ``Victim Restitution Act of 1995,'' is an
important step forward in ensuring justice for the victims of
crime and accountability for convicted criminals. By requiring
full financial restitution, the Act requires the offender to
face the harm suffered by his victims and, to others harmed by
his unlawful actions. Further, it strives to provide those who
suffer the consequences of crime with some means of recouping
the personal and financial losses resulting from crime.
Committee Consideration
On January 27, 1995, the Committee on the Judiciary met in
open session and ordered reported the bill H.R. 665, as
amended, by a voice-vote, a quorum being present.
Vote of the Committee
The committee then considered the following amendment,
which was adopted by voice-vote.
Mr. McCollum offered an amendment to provide that any
restitution order include an amount reimbursing the victim for
lost income relating to the victim's participation in the
investigation or prosecution of the offense or attendance at
proceedings related to the offense. The amendment was adopted
by voice-vote.
Committee Oversight Findings
In compliance with clause a(l)(3)(A) of rule XI of the
Rules of the House of Representatives, the Committee reports
that the findings and recommendations of the committee, based
on oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Committee on Government Reform and Oversight Findings
No findings or recommendations of the Committee on
Government Reform and Oversight were received as referred to in
clause 2(l)(3)(D) of rule XI of the Rules of the House of
Representatives.
New Budget Authority and Tax Expenditures
Clause 2(l)(3)(B) of House Rule XI is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 2(l)(C)(3) of rule XI of the
Rules of the House of Representatives, the committee sets
forth, with respect to the bill, H.R. 665, the following
estimate and comparison prepared by the Director of the
Congressional Budget Office under section 403 of the
Congressional Budget Act of 1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, February 1, 1995.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
reviewed H.R. 665, the Victim Restitution Act of 1995, as
ordered reported by the House Committee on the Judiciary on
January 27, 1995. We estimate that enacting the bill would
result in increased costs to the federal government of about $5
million annually, subject to available appropriations. Because
enactment of H.R. 665 would not affect direct spending or
receipts, pay-as-you-go procedures would not apply to the bill.
H.R. 665 would require that federal courts order defendants
to pay restitution to victims. Under current law, orders of
restitution are optional. The bill also would make several
other changes to the laws relating to restitution. Based on
information provided by the Administrative Office of the United
States Courts, CBO expects that enactment of this legislation
would result in 10,000 to 15,000 additional orders of
restitution annually. Each order of restitution would increase
administrative expenditures of the courts by $400 to $500, so
implementation of H.R. 665 would cost about $5 million
annually, assuming appropriation of the necessary amounts.
Enacting H.R. 665 would result in no costs to state or
local governments.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz, who can be reached at 226-2860.
Sincerely,
Robert D. Reischauer, Director.
Inflationary Impact Statement
Pursuant to clause 2(l)(4) of rule XI of the Rules of the
House of Representatives, the Committee estimates that H.R. 665
will have no significant inflationary impact on prices and
costs in the national economy.
Section-by-Section Analysis
section 1. short title
Section 1 of the bill states the short title as the
``Victim Restitution Act of 1995.''
section 2. mandatory restitution and other provisions
This section of the bill would amend several subsections of
section 3663(a) of Title 18, United States Code.
New subsection (a)(1) requires federal judges to order
persons convicted of crimes to make restitution to their
victims. It also makes it clear that any other penalty imposed
by the law for the offense may be ordered in addition to the
restitution. In the case of misdemeanors, the court would
continue to be authorized to impose restitution in lieu of any
other penalty.
Section 2 of the bill also adds new subsection (a)(4),
which authorizes the court to order the defendant to make
restitution to any other person who was harmed physically,
emotionally, or financially by the defendant's unlawful
conduct. The harm must have occurred at some point during the
entire criminal episode, or during the course of any scheme,
conspiracy, or pattern of unlawful activity that is related to
the offense. The prosecution, as is currently the case, has the
burden of proving the harm of financial loss by a preponderance
of the evidence at the sentencing hearing.
In addition to making restitution to victims mandatory, the
bill would add new subsection (a)(5) to allow judges to
consider, when establishing a restitution order, the indirect
costs of a victim's lost income and the costs of necessary
child care, transportation, and other expense incurred by
virtue of the victim's participation in the investigation,
prosecution, and sentencing for the offense, or any other
related proceedings.
New subsection (d) provides that the restitution award is
to be determined without considering the offender's economic
circumstances, or the fact that the victim has or is entitled
to receive compensation from insurance or from any other source
(such as a state crime victims' compensation fund). In
determining the payment schedule of the restitution awarded,
however, the court is to consider the financial resources of
the offender. The section also makes it clear that the court is
to consider the projected earnings, any other income of the
offender, and any other financial obligations of the defendant,
including obligations to dependents, when establishing the
schedule of any non-lump restitution payments. H.R. 665 allows
the court to order restitution payments in the form of single,
lump-sum payments; partial payments at specified intervals; or
such in-kind payments that may be agreeable to both the victim
and the offender. In-kind payments may be in the form of the
return of property, the replacement of property, or services
rendered to the victim, or to persons, or organizations other
than the victim.
New subsection (e) of section 3663 gives the court the
discretion to make either multiple offenders jointly and
severally liable for payment of the full restitution award, or
to apportion the restitution order among the various offenders.
New subsection (f) provides that if more than one victim
has sustained a loss, the court must order that full
restitution be made to each victim, but the court has the
discretion to order different payment schedules with respect to
each victim depending on a number of varying factors.
New subsection (g)(1) makes it clear that if the victim
receives, or is entitled to receive, compensation from some
other source (including insurance proceeds), the court is
required to order that the restitution payment be made first to
fully satisfy the victim's loss before any payments can be made
to a third party.
Subsection (g)(2) is designed to ensure that victims are
entitled to receive an amount equal to the greater of the
restitution award or any other compensation to which they are
entitled. The subsection expressly states that the restitution
order will not affect the victim's rights against any other
source or sources of compensation, including any insurance
proceeds or civil damages.
Subsection (g)(3) requires that any amounts paid to a
victim under a restitution order are to be set off against any
recovery by the victim in a federal civil proceeding or any
state civil proceeding (to the extent required by that state's
law).
Subsection (h) requires the court to order that all
restitution payments be made to an entity designated by the
Director of the Administrative Office of the United States
Court to make the restitution payments to the various victims.
The subsection also requires the designated entity to keep
appropriate records of those payments. It also requires
offenders to report any change of address to that same entity.
That entity is to notify the court if the offender falls 30 or
more days behind in compliance with any restitution order.
New subsection (j) makes compliance with the restitution
order a condition of any probation, parole, or other form of
supervised release. It further provides that if the offender
fails to comply with the restitution order, in any way, the
court may revoke the defendant's probation, parole, or
supervised release; hold the offender in contempt of court;
enter a restraining order or injunction; or take any other
action necessary to force the offender to comply with the
court's restitution order. In fashioning the appropriate
sanction, the court must consider the offender's employment
status, earning ability, financial resources, willfulness in
failing to comply with the restitution order, and any other
circumstance that may bear on the defendant's failure to comply
with the order of the court.
Subsection (k) provides that the United States and/or the
victim may enforce the restitution order in the same manner as
a judgment in a civil action.
Subsection (l) allows both the offender or the victim to
move the court to modify the restitution order in light of a
change in the economic circumstances of the offender. The
motions to modify can be made at any time the restitution order
is still in effect. A change in the economic circumstances of
the victim is not a proper basis for any modification of the
restitution order.
Section 2 also amends portions of section 3664 of Title 18,
United States Code. Specifically, new subsection (a) of that
section specifies that the court may require the probation
service of the court to obtain pertinent information relating
to the restitution order, such as the loss sustained by the
victim, and the financial needs and earning ability of the
defendant and the defendant's dependents. The information is to
be included in the presentence report filed by the probation
service.
Finally, new subsection (e) of section 3664 authorized the
judge to refer any issues relating to a restitution award to a
magistrate or special master for proposed findings of fact and
recommendations as to disposition. The findings are subject to
de novo review by the court.
Agency Views
The Committee received a letter from the U.S. Department of
Justice providing Administration views on H.R. 3, the ``Taking
Back Our Streets Act of 1995.'' This letter addressed the
issues presented in H.R. 665 in pertinent as follows:
iii. mandatory victim restitution
Title III of H.R. 3 contains amendments that would make the
issuance of a full order of restitution mandatory in all cases
under the federal criminal code, and would otherwise strengthen
the restitution statute. The amendments would preserve the
court's authority to consider the offender's economic
circumstances in specifying the manner and timing of payment,
e.g., in setting up a payment schedule that is consistent with
the offender's actual ability to pay. The Senate passed similar
provisions in sec. 902 of the first version of H.R. 3355 that
it passed in the 103d Congress, and in section 2003 of S. 1241
of the 102d Congress.
As we have previously stated, we support these provisions.
See Letter of Attorney General Janet Reno to Honorable Joseph
R. Biden, Jr., Detailed Comments at 14 (June 13, 1994). We
believe strongly that all offenders should be forced to repay
all their victims for the harm they have suffered.
On a technical level, we have a few recommendations
concerning the formation of this proposal. For example,
proposed new paragraph (5) in 18 U.S.C. 3663(b), relating to
reimbursement of the victim for costs associated with
participation in the investigation or prosecution, has already
been enacted in a stronger form (including coverage of the
victim's lost income) by section 40504 of the Violent Crime
Control and Law Enforcement Act of 1994. We would be pleased to
assist Congress in finalizing this proposal.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3 of rule XIII of the Rules of the
House of Representatives, changes in existing law made by the
bill, as reported, are shown as follows (existing law proposed
to be omitted is enclosed in black brackets, new matter is
printed in italic, existing law in which no change is proposed
is shown in roman):
TITLE 18, UNITED STATES CODE
* * * * * * *
CHAPTER 232--MISCELLANEOUS SENTENCING PROVISIONS
* * * * * * *
Sec. 3663. Order of restitution
(a)(1) The court, when sentencing a defendant convicted of an
offense under this title or section 46312, 46502, or 46504 of
title 49, [may order, in addition to or, in the case of a
misdemeanor, in lieu of any other penalty authorized by law]
shall order, that the defendant make restitution to any victim
of such offense. The requirement of this paragraph does not
affect the power of the court to impose any other penalty
authorized by law. In the case of a misdemeanor, the court may
impose restitution in lieu of any other penalty authorized by
law.
* * * * * * *
(4) In addition to ordering restitution to the victim of the
offense of which a defendant is convicted, a court may order
restitution to any person who, as shown by a preponderance of
evidence, was harmed physically, emotionally, or pecuniarily,
by unlawful conduct of the defendant during--
(A) the criminal episode during which the offense
occurred; or
(B) the course of a scheme, conspiracy, or pattern of
unlawful activity related to the offense.
(b) The order may require that such defendant--
(1) in the case of an offense resulting in damage to
or loss or destruction of property of a victim of the
offense--
(A) return the property to the owner of the
property or someone designated by the owner; or
(B) if return of the property under
subparagraph (A) is impossible, [impractical]
impracticable, or inadequate, pay an amount
equal to the greater of--
(i) * * *
* * * * * * *
(2) in the case of an offense resulting in emotional
or bodily injury to a victim including an offense under
chapter 109A or chapter 110--
(A) * * *
* * * * * * *
(4) in any case, reimburse the victim for lost income
and necessary child care, transportation, and other
expenses related to participation in the investigation
or prosecution of the offense or attendance at
proceedings related to the offense; [and]
(5) in any case, reimburse the victim for lost income
and necessary child care, transportation, and other
expenses related to participation in the investigation
or prosecution of the offense or attendance at
proceedings related to the offense; and
[(5)] (6) in any case, if the victim (or if the
victim is deceased, the victim's estate) consents, make
restitution in services in lieu of money, or make
restitution to a person or organization designated by
the victim or the estate.
(c) [If the court decides to order restitution under this
section, the] The court shall, if the victim is deceased, order
that the restitution be made to the victim's estate.
[(d) To the extent that the court determines that the
complication and prolongation of the sentencing process
resulting from the fashioning of an order of restitution under
this section outweighs the need to provide restitution to any
victims, the court may decline to make such an order.
[(e)(1) The court shall not impose restitution with respect
to a loss for which the victim has received or is to receive
compensation, except that the court may, in the interest of
justice, order restitution to any person who has compensated
the victim for such loss to the extent that such person paid
the compensation. An order of restitution shall require that
all restitution to victims under such order be made before any
restitution to any other person under such order is made.
[(2) Any amount paid to a victim under an order of
restitution shall be set off against any amount later recovered
as compensatory damages by such victim in--
[(A) any Federal civil proceeding; and
[(B) any State civil proceeding, to the extent
provided by the law of that State.
[(f)(1) The court may require that such defendant make
restitution under this section within a specified period or in
specified installments.
[(2) The end of such period or the last such installment
shall not be later than--
[(A) the end of the period of probation, if probation
is ordered;
[(B) five years after the end of the term of
imprisonment imposed, if the court does not order
probation; and
[(C) five years after the date of sentencing in any
other case.
[(3) If not otherwise provided by the court under this
subsection, restitution shall be made immediately.
[(4) The order of restitution shall require the defendant to
make restitution directly to the victim or other person
eligible under this section, or to deliver the amount or
property due as restitution to the Attorney General or the
person designated under section 604(a)(18) of title 28 for
transfer to such victim or person.
[(g) If such defendant is placed on probation or sentenced to
a term of supervised release under this title, any restitution
ordered under this section shall be a condition of such
probation or supervised release. The court may revoke probation
or a term of supervised release, or modify the term or
conditions of probation or a term of supervised release, or
hold a defendant in contempt pursuant to section 3583(e) if the
defendant fails to comply with such order. In determining
whether to revoke probation or a term of supervised release,
modify the term or conditions of probation or supervised
release, or hold a defendant serving a term of supervised
release in contempt, the court shall consider the defendant's
employment status, earning ability, financial resources, the
willfulness of the defendant's failure to pay, and any other
special circumstances that may have a bearing on the
defendant's ability to pay.
[(h) An order of restitution may be enforced--
[(1) by the United States--
[(A) in the manner provided for the
collection and payment of fines in subchapter B
of chapter 229 of this title; or
[(B) in the same manner as a judgment in a
civil action; and
[(2) by a victim named in the order to receive the
restitution, in the same manner as a judgment in a
civil action.]
(d)(1) The court shall order restitution to a victim in the
full amount of the victim's losses as determined by the court
and without consideration of--
(A) the economic circumstances of the offender; or
(B) the fact that a victim has received or is
entitled to receive compensation with respect to a loss
from insurance or any other source.
(2) Upon determination of the amount of restitution owed to
each victim, the court shall specify in the restitution order
the manner in which and the schedule according to which the
restitution is to be paid, in consideration of--
(A) the financial resources and other assets of the
offender;
(B) projected earnings and other income of the
offender; and
(C) any financial obligations of the offender,
including obligations to dependents.
(3) A restitution order may direct the offender to make a
single, lump-sum payment, partial payment at specified
intervals, or such in-kind payments as may be agreeable to the
victim and the offender.
(4) An in-kind payment described in paragraph (3) may be in
the form of--
(A) return of property;
(B) replacement of property; or
(C) services rendered to the victim or to a person or
organization other than the victim.
(e) When the court finds that more than 1 offender has
contributed to the loss of a victim, the court may make each
offender liable for payment of the full amount of restitution
or may apportion liability among the offenders to reflect the
level of contribution and economic circumstances of each
offender.
(f) When the court finds that more than 1 victim has
sustained a loss requiring restitution by an offender, the
court shall order full restitution to each victim but may
provide for different payment schedules to reflect the economic
circumstances of each victim.
(g)(1) If the victim has received or is entitled to receive
compensation with respect to a loss from insurance or any other
source, the court shall order that restitution be paid to the
person who provided or is obligated to provide the
compensation, but the restitution order shall provide that all
restitution to victims required by the order be paid to the
victims before any restitution is paid to such a provider of
compensation.
(2) The issuance of a restitution order shall not affect the
entitlement of a victim to receive compensation with respect to
a loss from insurance or any other source until the payments
actually received by the victim under the restitution order
fully compensate the victim for the loss, at which time a
person that has provided compensation to the victim shall be
entitled to receive any payments remaining to be paid under the
restitution order.
(3) Any amount paid to a victim under an order of restitution
shall be set off against any amount later recovered as
compensatory damages by the victim in--
(A) any Federal civil proceeding; and
(B) any State civil proceeding, to the extent
provided by the law of the State.
(h) A restitution order shall provide that--
(1) all fines, penalties, costs, restitution payments
and other forms of transfers of money or property made
pursuant to the sentence of the court shall be made by
the offender to an entity designated by the Director of
the Administrative Office of the United States Courts
for accounting and payment by the entity in accordance
with this subsection;
(2) the entity designated by the Director of the
Administrative Office of the United States Courts
shall--
(A) log all transfers in a manner that tracks
the offender's obligations and the current
status in meeting those obligations, unless,
after efforts have been made to enforce the
restitution order and it appears that
compliance cannot be obtained, the court
determines that continued recordkeeping under
this subparagraph would not be useful; and
(B) notify the court and the interested
parties when an offender is 30 days in arrears
in meeting those obligations; and
(3) the offender shall advise the entity designated
by the Director of the Administrative Office of the
United States Courts of any change in the offender's
address during the term of the restitution order.
(i) A restitution order shall constitute a lien against all
property of the offender and may be recorded in any Federal or
State office for the recording of liens against real or
personal property.
(j) Compliance with the schedule of payment and other terms
of a restitution order shall be a condition of any probation,
parole, or other form of release of an offender. If a defendant
fails to comply with a restitution order, the court may revoke
probation or a term of supervised release, modify the term or
conditions of probation or a term of supervised release, hold
the defendant in contempt of court, enter a restraining order
or injunction, order the sale of property of the defendant,
accept a performance bond, or take any other action necessary
to obtain compliance with the restitution order. In determining
what action to take, the court shall consider the defendant's
employment status, earning ability, financial resources, the
willfulness in failing to comply with the restitution order,
and any other circumstances that may have a bearing on the
defendant's ability to comply with the restitution order.
(k) An order of restitution may be enforced--
(1) by the United States--
(A) in the manner provided for the collection
and payment of fines in subchapter B of chapter
229 of this title; or
(B) in the same manner as a judgment in a
civil action; and
(2) by a victim named in the order to receive the
restitution, in the same manner as a judgment in a
civil action.
(l) A victim or the offender may petition the court at any
time to modify a restitution order as appropriate in view of a
change in the economic circumstances of the offender.
[(i)] (m)(1) A Federal agency shall immediately suspend all
Federal benefits provided by the agency to the defendant, and
shall terminate the defendant's eligibility for Federal
benefits administered by that agency, upon receipt of a
certified copy of a written judicial finding that the defendant
is delinquent in making restitution in accordance with any
schedule of payments or any requirement of immediate payment
imposed under this section.
(2) Any written finding of delinquency described in paragraph
(1) shall be made by a court, after a hearing, upon motion of
the victim named in the order to receive the restitution or
upon motion of the United States.
(3) A defendant found to be delinquent may subsequently seek
a written finding from the court that the defendant has
rectified the delinquency or that the defendant has made and
will make good faith efforts to rectify the delinquency. The
defendant's eligibility for Federal benefits shall be
reinstated upon receipt by the agency of a certified copy of
such a finding.
(4) In this subsection, ``Federal benefit'' means a grant,
contract, loan, professional license, or commercial license
provided by an agency of the United States.
Sec. 3664. Procedure for issuing order of restitution
[(a) The court, in determining whether to order restitution
under section 3663 of this title and the amount of such
restitution, shall consider the amount of the loss sustained by
any victim as a result of the offense, the financial resources
of the defendant, the financial needs and earning ability of
the defendant and the defendant's dependents, and such other
factors as the court deems appropriate.
[(b) The court may order the probation service of the court
to obtain information pertaining to the factors set forth in
subsection (a) of this section. The probation service of the
court shall include the information collected in the report of
presentence investigation or in a separate report, as the court
directs.]
(a) The court may order the probation service of the court to
obtain information pertaining to the amount of loss sustained
by any victim as a result of the offense, the financial
resources of the defendant, the financial needs and earning
ability of the defendant and the defendant's dependents, and
such other factors as the court deems appropriate. The
probation service of the court shall include the information
collected in the report of presentence investigation or in a
separate report, as the court directs.
[(c)] (b) The court shall disclose to both the defendant and
the attorney for the Government all portions of the presentence
or other report pertaining to the matters described in
subsection (a) of this section.
[(d)] (c) Any dispute as to the proper amount or type of
restitution shall be resolved by the court by the preponderance
of the evidence. The burden of demonstrating the amount of the
loss sustained by a victim as a result of the offense shall be
on the attorney for the Government. The burden of demonstrating
the financial resources of the defendant and the financial
needs of the defendant and such defendant's dependents shall be
on the defendant. The burden of demonstrating such other
matters as the court deems appropriate shall be upon the party
designated by the court as justice requires.
[(e)] (d) A conviction of a defendant for an offense
involving the act giving rise to restitution under this section
shall estop the defendant from denying the essential
allegations of that offense in any subsequent Federal civil
proceeding or State civil proceeding, to the extent consistent
with State law, brought by the victim.
(e) The court may refer any issue arising in connection with
a proposed order of restitution to a magistrate or special
master for proposed findings of fact and recommendations as to
disposition, subject to a de novo determination of the issue by
the court.
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