Federal Courts: Differences Exist in Ordering Fines and Restitution
(Testimony, 05/06/99, GAO/T-GGD-99-95).
Pursuant to a congressional request, GAO provided information on federal
courts and the differences that exist in ordering fines and restitution,
focusing on: (1) the percentages of those offenders who were ordered to
pay fines and restitution in fiscal year (FY) 1997 and those who were
not; (2) differences across judicial circuits and districts in the
percentages of those offenders who were ordered to pay fines or
restitution and those who were not; and (3) officials' opinions about
possible reasons for these differences.
GAO noted that: (1) although offender characteristics, type of offense,
and the nature of the sentence played a role, the judicial circuit or
district where an offender was sentenced was a major factor in
determining the likelihood of an offender's being ordered to pay a fine
or restitution during FY 1997; (2) this variation among judicial
circuits and districts occurred overall for all federal offenders
sentenced under sentencing guidelines during that year; (3) although
occurring less, this variation persisted when GAO performed multivariate
statistical analyses for federal offenders sentenced under sentencing
guidelines for four types of offenses; (4) the large statistical
variation among circuits and districts raises a question, on a broad
level, about whether the goal of uniformity in the imposition of fines
and restitution is being met; (5) under current conditions, offenders
could be much more likely in some jurisdictions than in others to be
ordered to pay a fine or restitution for the same type of crime; (6)
although the Mandatory Victims Restitution Act was intended to eliminate
much of the discretion judges previously had in waiving restitution for
certain types of crimes, the overall percentages of offenders ordered to
pay restitution has declined; (7) of the three offenses GAO analyzed,
the percentages of robbery offenders ordered to pay restitution
increased, while the percentages of larceny and fraud offenders
decreased; and (8) however, there may be mitigating circumstances, such
as recovery of stolen money that help explain why restitution was not
ordered in a particular case.
--------------------------- Indexing Terms -----------------------------
REPORTNUM: T-GGD-99-95
TITLE: Federal Courts: Differences Exist in Ordering Fines and
Restitution
DATE: 05/06/99
SUBJECT: Comparative analysis
Fines (penalties)
Crimes or offenses
Restitution
Criminals
Federal courts
Law enforcement
IDENTIFIER: Crime Victims Fund
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Federal Courts: Differences Exist in Ordering Fines and
Restitution (GAO/T-GGD-99-95) Federal Courts Differences Exist in
Ordering Fines and Restitution
Statement of Richard M. Stana, Associate Director Administration
of Justice Issues General Government Division
United States General Accounting Office
GAO Testimony Before the Subcommittee on Crime, Committee on the
Judiciary, House of Representatives
For Release on Delivery Expected at 9: 30 a. m. EDT Thursday May
6, 1999
GAO/T-GGD-99-95
GAO/T-GGD-99-95
Statement Federal Courts: Differences Exist in Ordering Fines and
Restitution
Page 1 GAO/T-GGD-99-95
Mr. Chairman and Members of the Subcommittee: I am pleased to be
here today to discuss the results of our review of the imposition
of fines and restitution in federal criminal cases. My statement
will outline the results presented in our recently completed
report, Federal Courts: Differences Exist in Ordering Fines and
Restitution (GAO/ GGD- 9970, May 6, 1999).
For that report, you asked us to (1) identify the percentages of
those offenders who were ordered to pay fines and restitution in
fiscal year 1997 and those who were not, (2) identify differences
across judicial circuits and districts in the percentages of those
offenders who were ordered to pay fines or restitution and those
who were not, and (3) provide officials' opinions about possible
reasons for these differences. We also documented changes in the
rate at which offenders were ordered to pay fines and restitution
before and after the Mandatory Victims Restitution Act (MVRA), 1
which was enacted April 24, 1996.
To answer your questions, we used 1997 data from the United States
Sentencing Commission (USSC). USSC maintains a computerized data
collection system, which forms the basis of its clearinghouse of
federal sentencing information. We performed a statistical
analysis of this data base for all 12 judicial circuits and 94
districts for offenders ordered to pay fines and restitution. We
performed multivariate statistical analyses to determine which
factors affected the likelihood of offenders being ordered to pay
fines or restitution. We did not determine whether fines or
restitution ordered were actually paid. We discussed our results
with officials of the Department of Justice (DOJ), the
Administrative Offices of the U. S. Courts (AOUSC), USSC, and with
chief judges, chief probation officers, and representatives of U.
S. Attorneys offices in seven judicial districts. A complete
description of our scope and methodology can be found in our
report.
Individuals convicted of a federal crime can be ordered by the
court to pay a fine or restitution at sentencing. Criminal fines,
which are punitive, are to be paid in most cases to DOJ's Crime
Victims Fund. USSC Guidelines provide guidance on the minimum and
maximum fine amounts to be imposed by the courts, based on the
offense. In establishing the USSC, Congress sought, as one
objective, uniformity in sentencing by narrowing the wide
disparity in sentences imposed for similar criminal offenses
committed by similar criminal offenders. Fines may be waived if
the
1 Title II of Public Law 104- 132. Background
Statement Federal Courts: Differences Exist in Ordering Fines and
Restitution
Page 2 GAO/T-GGD-99-95
offender establishes that he or she is unable to pay and is not
likely to become able to pay a fine. MVRA reformed restitution law
and now requires the court to order full restitution in certain
cases to each victim in the full amount of each victim's losses,
without regard to the offender's economic situation. Previously,
as with fines, the court could waive restitution, in most cases,
based on offenders' inability to pay.
While many factors influenced whether an offender was ordered to
pay a fine or restitution, the judicial circuit or district where
the offender was sentenced was a major factor during fiscal year
1997. This variation among judicial circuits and districts
occurred overall for all federal offenders sentenced under USSC
Guidelines during that year; and, although occurring less, this
variation persisted when we performed multivariate statistical
analysis for federal offenders sentenced for four types of
offenses.
Most of the approximately 48,000 federal offenders sentenced under
USSC Guidelines in fiscal year 1997 were not ordered by the courts
to pay a fine or restitution. About 19 percent were only fined by
the courts, and about 20 percent were only ordered to pay
restitution. Of the offenders sentenced, about 2 percent were
ordered to pay both fines and restitution. The total amount of
fines and restitution ordered was over $1.6 billion dollars.
The percentage of offenders ordered to pay fines or restitution
varied greatly across the 12 federal judicial circuits and 94
federal judicial districts. Across districts, for example, the
percentage of offenders ordered to pay fines ranged from 1 percent
to 84 percent, and the percentage of offenders ordered to pay
restitution ranged from 3 percent to 49 percent. The likelihood of
an offender's being ordered to pay fines or restitution could have
been three or more times greater in one federal judicial district
than in an adjacent district.
An important factor in determining whether an offender was ordered
to pay a fine or restitution was the type of offense committed.
While 6 percent of offenders sentenced for immigration offenses
were ordered to pay a fine, almost one- third of property
offenders were ordered to pay fines. Similarly, while 1 percent of
drug offenders were ordered to pay restitution, almost two- thirds
of fraud offenders were ordered to pay restitution.
Besides the type of offense committed, other factors, based on our
statistical analysis, that were associated with whether an
offender was The Importance of the
Judicial Circuit or District in the Likelihood of an Offender's
Being Ordered to Pay a Fine or Restitution
Statement Federal Courts: Differences Exist in Ordering Fines and
Restitution
Page 3 GAO/T-GGD-99-95
ordered to pay included sex, race, education, citizenship, length
of sentence, and type of sentence imposed, such as prison,
probation, or an alternative.
We controlled for all those factors for four specific types of
offenses in our multivariate statistical analysis, and the
judicial circuit or district in which the offender was sentenced
continued to be a major factor in determining whether an offender
was ordered to pay a fine or restitution. For example, offenders
convicted of fraud in the Eastern District of Pennsylvania, which
includes Philadelphia, were 13 times more likely to be ordered to
pay a fine and 3 times more likely to be ordered to pay
restitution than fraud offenders in the Eastern District of New
York, which includes Brooklyn. Other examples include the
following:
Offenders convicted of fraud offenses in the Middle District of
Florida, which includes Orlando, were four times more likely to be
ordered to pay restitution than those convicted of the same
offense in the Central District of California, which includes Los
Angeles.
Offenders convicted of drug trafficking offenses were 99 times
more likely to be ordered to pay a fine in the Western District of
Texas, which includes San Antonio, than they were in the Southern
District of California, which includes San Diego.
Offenders convicted of larceny offenses were 177 times more
likely to be ordered to pay a fine in the Middle District of
Georgia, which includes Macon, than in the Southern District of
Florida, which includes Miami.
Some court officials and prosecutors provided explanations of why
differences existed among the districts. Some attributed the
differences to the nature and type of offenses committed or types
of offenders sentenced in the districts. Some officials believed
that the culture, or management style, in the judicial district
among the prosecutors and court officials contributed to whether
offenders were fined or ordered to pay restitution. The culture
included how prosecutors and court officials worked together to
identify victims and their losses, among other factors.
Statement Federal Courts: Differences Exist in Ordering Fines and
Restitution
Page 4 GAO/T-GGD-99-95
Although the imposition of restitution for certain offenses became
mandatory with the passage of MVRA, the percentage of offenders,
overall, ordered to pay restitution during fiscal year 1997
actually declined to 12 percent for those who were covered by
MVRA's provisions, down from 26 percent for those who were not.
During fiscal year 1997, about 45 percent of offenders sentenced
under USSC Guidelines were subject to MVRA's provisions, and 55
percent were not.
MVRA's amendments are to be, to the extent constitutionally
permissible, effective for sentencing proceedings in cases in
which the defendant is convicted on or after the date of
enactment, which was April 24, 1996. However, because of an ex
post facto issue, DOJ has issued guidelines that any provisions of
MVRA for determining whether to impose restitution or the amount
of restitution would be applied only prospectively to offenses
committed on or after April 24, 1996. In general, the ex post
facto clause of the U. S. Constitution has been interpreted to
prohibit the application of a law that increases the primary
penalty for conduct after its commission. For our analysis, we
used DOJ's guidelines in determining whether an offender was or
was not subject to MVRA's provisions.
While the overall percentage of offenders ordered to pay
restitution declined, our multivariate statistical analysis showed
the following inconsistent results across the three types of
offenses we analyzed:
The likelihood of an offender's being ordered to pay restitution
for a larceny offense decreased by almost half;
The likelihood of an offender's being ordered to pay restitution
for a robbery offense increased by almost half; and
The likelihood of an offender's being ordered to pay restitution
for a fraud offense decreased slightly.
In discussing our results, some court officials and prosecutors
said that it was still too early to assess the full impact of
MVRA. Some officials commented that time was needed to become
familiar with and implement MVRA, especially on the part of the
Assistant U. S. Attorneys who prosecute cases covered by MVRA.
Prosecutors in one district acknowledged that they were not yet
fully implementing the law. In their written responses to a draft
of our report, both the Executive Office of the U. S. Attorneys
and USSC cited training efforts planned for court officials and
prosecutors on MVRA. DOJ, in their comments, acknowledged that,
The Effect of
Mandatory Restitution Has Been Mixed, but Overall the Percentage
of Offenders Ordered to Pay Has Declined
Statement Federal Courts: Differences Exist in Ordering Fines and
Restitution
Page 5 GAO/T-GGD-99-95
while a number of steps have been taken, more remains to be done
to increase the number of cases in which restitution is imposed.
Although we selected larceny, fraud, and robbery because of the
likelihood of a victim's being due restitution, a substantial
percentage of offenders about one- third to two- thirds of
offenders sentenced were still not ordered to pay restitution,
even when their crimes were committed after MVRA became effective.
Court officials and prosecutors provided some reasons why
restitution might not have been ordered in these cases. In some
cases, stolen money or assets might have been recovered. In other
cases, an offender might have paid the restitution prior to
sentencing, removing the need for a restitution order. Another
reason cited by officials was that the offense might have been an
attempted fraud or attempted robbery for which the offender was
arrested prior to obtaining money from the victim. Some officials
also cited an exception to MVRA in ordering mandatory restitution,
such as in cases where the number of victims is so large that it
makes paying restitution impracticable. One district had a number
of telemarketing schemes in which large numbers of victims were
defrauded of small amounts. It was not practical to identify all
victims and obtain restitution for them.
Although offender characteristics, type of offense, and the nature
of the sentence played a role, the judicial circuit or district
where an offender was sentenced was a major factor in determining
the likelihood of an offender's being ordered to pay a fine or
restitution during fiscal year 1997. This variation among judicial
circuits and districts occurred overall for all federal offenders
sentenced under sentencing guidelines during that year; and,
although occurring less, this variation persisted when we
performed multivariate statistical analyses for federal offenders
sentenced under sentencing guidelines for four types of offenses.
The large statistical variation among circuits and districts
raises a question, on a broad level, about whether the goal of
uniformity in the imposition of fines and restitution is being
met. Under current conditions, offenders could be much more likely
in some jurisdictions than in others to be ordered to pay a fine
or restitution for the same type of crime.
Although MVRA was intended to eliminate much of the discretion
judges previously had in waiving restitution for certain types of
crime, the overall percentages of offenders ordered to pay
restitution has declined. Of the three offenses we analyzed, the
percentages of robbery offenders ordered to pay restitution
increased, while the percentages of larceny and fraud offenders
decreased. However, there may be mitigating circumstances,
Conclusions
Statement Federal Courts: Differences Exist in Ordering Fines and
Restitution
Page 6 GAO/T-GGD-99-95
such as recovery of stolen money that help explain why restitution
was not ordered in a particular case.
This concludes my prepared statement, Mr. Chairman. I would be
pleased to answer any questions you or other Members of the
Subcommittee may have.
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