Federal Restitution & Fines

Litigating a Wide Range of Fine and Restitution Issues

Federal restitution is governed by two statutes, the 1982 Victim and Witness Protection Act (VWPA) and the 1996 Mandatory Victims Restitution Act (MVRA). Both statutes are codified at 18 U.S.C. §§ 3663-3664. The VWPA applies to all Title 18 offenses, including misdemeanors, except those Title 18 felonies covered by the MVRA in § 3663A(c).

The main difference between the VWPA and the MVRA is that the earlier statute does not require a sentencing court to order a defendant to make restitution to any victim of his offense. It sensibly requires a court to consider “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” in deciding whether to order restitution and how much restitution to order. 18 U.S.C. § 3663(B)(i)(II). With the rise of the victim’s rights movement, Congress decided that leaving restitution up to the judge’s discretion was not tough enough. In most cases judges were not imposing restitution at all. So the MVRA requires the courts to impose full restitution to the identified victims of all covered felonies regardless of the defendant’s ability to pay the restitution amount.

Under the MVRA, a defendant’s financial status remains relevant only to fixing an initial monthly payment schedule, which can later be adjusted up or down by the court depending on changes in the defendant’s ability to pay.

A restitution order can be enforced by the U.S. Attorney’s Office and the court for a period of 20 years “from the entry of judgment” or 20 years after the defendant’s release from imprisonment, whichever is later. 18 U.S.C. § 3613(b). There is no liability to pay restitution after that date and judges have no authority to extend the 20 year period. Not surprisingly, very few restitution orders are ever fully collected. In fact, the “Justice Department considers 91% of outstanding restitution to be ‘uncollectable.’” Lagos v. United States, 138 S. Ct. 1684, 1689 (2018) (quoting a GAO report).

The government’s collection efforts are carried out by the Financial Litigation Unit (FLU) of each U.S. Attorney’s Office. These efforts are often haphazard. They can be overly aggressive or lackadaisical. After years of doing nothing, the FLU can suddenly focus its attention on a defendant who has not been making his court-ordered monthly payments, despite his ability to do so, and crack down hard. Our firm has represented many such defendants.

Our attorneys frequently act on behalf of defendants in litigation over criminal fines (18 U.S.C. § 3572), the Mandatory Victims’ Restitution Act (18 U.S.C. §§ 3663A-3664), the Crime Victims’ Rights Act (18 U.S.C. § 3771) and forfeiture-related matters. Common issues include:

  • The defendant’s ability to pay a fine or make restitution
  • The failure of the defendant to disclose income or assets to the Probation Office
  • Modification of fines and restitution orders
  • Efforts by the government to collect on delinquent payments
  • Questions regarding who is a victim for restitution purposes
  • Calculation of the victim’s compensable pecuniary loss resulting from a crime
  • Rights of spouses and other third parties in property

Mr. Smith’s widely used two-volume treatise, Prosecution and Defense of Forfeiture Cases (2022), covers the law of fines and restitution extensively, and our firm frequently receives referrals from other law firms in this area. Based in Alexandria, Virginia, and New York City, we handle federal cases nationwide. Call us or request a consultation today.