Restitution for Losses Suffered
Many victims are interested in how they can be repaid for their financial losses suffered as a result of a crime. The Mandatory Restitution Act of 1996 established procedures for determining the amount of restitution to which a victim may be entitled. Information on procedures for restitution for crimes which occurred before the Act was passed (April 24, 1996) is also included.
The Act provides that ‘identified’ victims may be entitled to an order of restitution as part of the criminal sentence imposed on the defendant, for certain losses suffered as a result of the commission of an offense, or as part of a plea agreement. Victims may be either individuals or businesses.
It is important to begin keeping a record of all expenses incurred as a result of the crime. This information may be used in determining what, if any, restitution may be ordered by the Court.
In any case, at sentencing, the Judge may order reimbursement to a victim for verified 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. However, victims of crimes such as telemarketing, child exploitation, interstate domestic violence and sexual assault, may be eligible for the full amount of identified victims’ losses.
For an offense resulting in physical injury to a victim, the Court may order: payment equal to the cost of necessary medical and related professional services and devices relating to physical, psychiatric, and psychological care; payment equal to the cost of necessary physical and occupational therapy and rehabilitation; and/or reimbursement to the victim for income lost as a result of the offense.
In most fraud cases, restitution may be ordered where victims of the offense of conviction have suffered the loss of money or some negotiable instrument (investor fraud offenses or offenses involving the misuse of stolen credit cards), or the damage or loss of property. The Court may order a defendant to pay an amount equal to each victim’s actual losses, usually the value of the principle or property fraudulently obtained.
Describing the Impact of the Crime
In addition, after a conviction, victims will also be asked to complete a Victim Impact Statement. This statement allows victims the opportunity to report on various consequences of the offense, including financial, social, psychological and/or medical. The Victim Impact Statement provides an important way for the Judge to consider losses and harm as a result of the crime.
Provisions Regarding Allowable Restitution
In most cases, attorney fees, and tax penalties are not included in court ordered restitution. The Court may order the return of property or money to a victim or to someone a victim chooses. The Court may also order restitution to persons other than victims of a convicted offense, if agreed to in a plea agreement.
A court may decline to order restitution if it finds that determining restitution in a case is too complex.
In most cases, if the victim consents, the Court may order the defendant to make restitution by performing “service” instead of money, or to make restitution to a person or organization designated by the victim.
In addition, a victim may at any time assign his/her own interest in restitution payments to the Crime Victims Fund, through the U.S. Treasury. This fund provides funding to assist crime victims assistance and compensation programs throughout the United States.
Additional Restitution Provisions
An order of restitution is not dischargeable in bankruptcy. Under the Act, if an identified victim discovers further losses after a judgment has been filed, that victim has 60 days after
discovery of the losses to petition the Court for an amended restitution order. This order may be granted only upon a showing of good cause for the failure to include such losses in the initial claim for restitution.
After a Judge has imposed a restitution order, the U.S. Attorney or an identified victim may later make a motion to the Court if he/she discovers a material change in the defendant’s economic circumstances that affect his or her ability to pay restitution. Victims with such information should contact the U.S. Attorney’s Office.
The U.S. Attorney’s Office is required to certify to the Court that victims who are owed restitution are notified about such material changes. Upon receipt of such notification, the Court has the discretion to adjust the defendant’s payment schedule or require payment in full, as the interests of justice require.
Other Available Remedies
Victims of violent crimes may be eligible for victim compensation which can often pay for medical and psychological costs, loss of income or support, or funeral expenses related to the crime.
In some cases, victims of fraud crimes may be able to see some recovery through a regulatory agency. In some cases, a victim may also wish to file a civil action or file in small claims court against a defendant to recoup losses caused by the crime. For advice on the wisdom of such a suit, you should consult with a private attorney of your choice, or the Small Claims Court in the county in which the crime occurred. There is usually a statute of limitations which limits the time in which a civil suit can be filed.
A victim may also choose to request the U.S. Clerk of Court to issue an Abstract of Judgment certifying that a judgment has been entered in a victim’s favor in the amount specified in the Judgment. A victim may then file this with the Register of Deed’s Office for any county in which it is believed the defendant has assets, in the state in which a defendant was convicted in federal court. Upon its recording, the Abstract of Judgment becomes a lien upon the property of the defendant in that county/state in the same manner as a state court judgment. Victims should consult with a private attorney for specific information.
What If I Expect Damages From a Civil Suit or Receive Compensation From Other Sources?
If a victim has received compensation from insurance, disability, the Crime Victims’ Compensation Fund, or any other source with respect to a loss, the Court shall order that restitution be paid to the person/company who provided or is obligated to provide the compensation. However, the restitution order shall provide that all restitution is payable to actual victims first.
Any amount paid under restitution shall be reduced by any amount later recovered as compensatory damages for the same loss in any related civil proceeding.
Under federal law, in many types of federal crimes, it is mandatory for a defendant to pay restitution for cases occurring after April 24, 1996. For most crimes committed prior to this date, the Court has more discretion on whether to order restitution.
Unfortunately, as a practical matter, a defendant who has no money or potential to make money may be unlikely to ever make meaningful restitution to the victims of a crime.
If a defendant pleads guilty or is found guilty at trial, available information on each identified victim’s loss, usually obtained by the case agent during the investigation, will be provided to the U.S. Probation Office by the U.S. Attorney’s Office. A pre sentence probation officer is assigned to investigate the background of a defendant, and prepare a pre sentence report for the Judge, recommending the most appropriate sentence.
Identified victims whose losses are included in the counts of conviction or as part of a plea agreement will also have the opportunity to request restitution and explain their losses in a Declaration of Victim Loss Statement. This statement is provided to victims to complete by the U.S. Probation Officer, after a defendant has been convicted at trial or has pleaded guilty. Victims should consider closely the types of restitution allowable, as it is often limited, and may not include damages for such things as pain and suffering. Victims should provide receipts or other verification where possible.
How Does a Victim Begin Receiving Money?
The U.S. Clerk of Court is charged with the collection and distribution of restitution as any payment becomes available.
If you are awarded restitution, simply keep the U.S. Clerk of Court informed of where you live and if your address changes. Any restitution payment owed will be forwarded to you as it becomes available.
The U.S. Attorney’s Office, Financial Litigation Unit (FLU) enforces orders of restitution. In the Western District of Wisconsin, in cases in which a restitution order is made, the FLU will file a lien on behalf of identified victims.
The FLU will pursue various means to enforce restitution, as the judgment and its resources permit, on behalf of identified victims for 20 years from the filing date of the judgment (plus the time period of actual incarceration) or until the death of the defendant. While a defendant is under the supervision of a probation officer, that probation officer will also monitor and ensure appropriate restitution is paid, where possible.
For further information on any of these issues, contact the Victim Witness Assistance Program or the Financial Litigation Unit (FLU ) of the United States Attorney’s Office at (608)264-5158 or toll free at 1-(888)415-9821, or the United States Clerk of Court at (608)264-5158.
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