Many victims are interested in how they can be repaid for their financial losses suffered as a result of a crime. This page provides an overview of that process. The Mandatory Restitution Act of 1996 established procedures for determining the amount of restitution to which a victim may be entitled.
The Act provides that ‘identified’ victims may be entitled to an order of restitution as part of the sentence in any criminal federal case. That restitution may be for losses suffered as a result of the offense of conviction and/or restitution agreed to by a defendant in a plea agreement. Victims may be either individuals, businesses or organizations.
If you are a victim, it is important for you to begin keeping a record of all expenses incurred as a result of the crime, so this information can be used in determining what costs may be ordered by a Judge to be repaid by a defendant if convicted.
If a defendant pleads guilty or is found guilty at trial, information regarding your losses (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 to include in the presentence report.
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. You will need to complete this statement, provided by the U.S. Probation Officer, after a defendant has been convicted at trial or has pled guilty.
You 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. You should provide receipts or other verification where possible. 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.
Describing the Impact of the Crime
Following a conviction or guilty plea by the defendant, you will also be asked to complete a Victim Impact Statement. This statement allows you the opportunity to report on various consequences of the offense, including financial, social, psychological and/or medical consequences. The Victim Impact Statement provides an important way for the Judge to consider losses and harm as a result of the crime.
Restitution Available To Any Eligible Victim
The Judge may order reimbursement for verified lost income and cost of necessary child care, transportation, or other expenses related to participation in the investigation or prosecution of the offense, or attendance at proceedings related to the offense.
Physical Injury as a Result of the Crime
For an offense resulting in physical injury, 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 for income lost as a result of the offense.
Restitution for Financial Loss
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.
Provisions Regarding Allowable Restitution
In most cases, attorney fees, and other expenses incurred to obtain compensation 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.
If a victim dies, restitution may also be paid to a victim's estate. Documents verifying a victim's death and information on power of attorney may be requested by the U.S. Clerk of Court, prior to any restitution being paid. In cases such as these, it is very important to keep the U.S. Attorney's Victim/Witness Assistance Program or the U.S. Clerk of Court, Fiscal Unit informed of any status or address changes.
A court may decline to order restitution if it finds that determining restitution in a case is too complex.
In most cases, if you consent, the Court may order the defendant to make restitution by performing "service" instead of monetary payment or to make restitution to a person or organization designated by the victim. You should list such suggestions on your Victim Impact Statement which is provided if a defendant is convicted of a crime for which you are an identified victim.
In addition, you 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 victim assistance and compensation programs throughout the U.S.
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. Attorney's Office Victim/Witness Assistance Program or the U.S. Clerk of Court/Fiscal Unit 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) is charged with enforcing orders of restitution. In the Eastern 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 law 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.
How Is Restitution Collected And Disbursed?
While the defendant is in prison, payments are collected by the Bureau of Prisons. As noted above, due to the nature of the collection rate (per quarter) it may be unlikely that you will receive restitution while the defendant is incarcerated. Once the defendant is released from prison, the defendant is usually under a period of supervised release. During the period of supervised release, or if the defendant receives a sentence of probation, the US Probation Office is responsible for collecting restitution from the defendant. The Probation Officer will ensure that the defendant is making monthly restitution payments to the Clerk of the Court. After the defendant completes his/her period of supervision or probation, the US Attorney’s Office Financial Litigation Unit tries to ensure that the defendant is making monthly restitution payments to the Clerk of the Court. The U.S. Clerk of Court receives payments from the defendant and then will forward payment to the victims. However, as noted above, these payments have to be distributed among all the victims at the same time. In cases that have numerous victims, these payments may be quite small. The Clerk does not issue checks for less than $25 per victim because this is not economically feasible. Therefore, the Clerk will wait until there is a more substantial amount to disburse to victims. The Clerk will not send a letter notifying you of a pending payment - you will simply receive a check in the mail.
Can Victims File a Lien Against a Defendant?
You 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. You may then file this with the Recorder'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. You should consult with a private attorney for specific information.
A copy of the Abstract of Judgment may be downloaded from the U.S. Clerk of Court Internet web page, or by contacting the U.S. Clerk of Court. You must complete the form and submit it to the U.S. Clerk of Court before the Abstract will be "issued" by the U.S. Clerk of court.
Additional Restitution Provisions
An order of restitution is not dischargeable in a defendant's bankruptcy.
Under the Act, if you discover further losses after a judgment has been filed, you have 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.
Other Available Remedies
If you are a victim of a violent crime, you 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.
You have the option of filing a civil action 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.
What If You Expect Damages from a Civil Suit or Receive Compensation from Other Sources?
If you have 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 as restitution beyond what you have already received, shall be reduced by any amount later recovered as compensatory damages for the same loss in any related civil proceeding.
For additional questions, please contact the Victim/Witness Assistance Program, U.S. Attorney's Office, Milwaukee, WI: 1-800-680-8949