	Background

		Stakeholders Involved in the Federal Restitution Process

Victims of federal crimes may be compensated for their losses through  criminal proceedings when a federal court orders restitution pursuant to  statute. Restitution is part of the sentencing process for federal offenders  and there are four key groups of stakeholders involved:
Judges and court officials. DOJ officials are responsible for  prosecuting federal offenses, identifying victims of crime and  informing them of restitution to which they may be entitled, identifying  victim losses and harms that are subject to restitution after consulting  with victims and providing that information to probation officers,  demonstrating the amount of loss sustained by the victim, enforcing  orders of restitution, and collecting criminal debt, including unpaid  restitution. A federal crime victim is a person directly and proximately  harmed as the result of a federal offense. Defendants and their counsel. The restitution statutes specify the types of harm that may be  compensated, and federal case law interpreting these statutes provides  guidance to courts when ordering restitution. During a defendant’s sentencing,  additional hearings may be held to examine losses to victims for  restitution and prosecutors are responsible for proving and litigating  issues related to victims’ losses. Separate from criminal restitution, victims may seek compensation from  the offender by pursuing litigation at their own expense through a civil  proceeding in a federal, state, or local court. For more information on the restitution imposed by the  federal courts from fiscal years 1996 through 2016, see appendix II. According to data DOJ provided to us, the total outstanding restitution  debt owed in federal cases as of the end of fiscal year 2016 was $110.2  billion. Stakeholders Identified Various Factors Related to the Potential Expansion of Federal Courts’ Authority to Order Restitution

Stakeholders we interviewed identified various factors related to the  potential expansion of federal courts’ authority to order restitution in the  four areas listed in the Justice for All Reauthorization Act of 2016: (1) to  apply to victims who have suffered harm, injury, or loss that would not  have occurred but for the defendant’s related conduct; (2) in the case of  an offense resulting in the victim’s death, to allow the court to use its  discretion to award the income lost by the victim’s surviving family  members or estate as a result of the victim’s death; (3) to require that the  defendant pay to the victim an amount determined by the court to restore  the victim to the position he or she would have been in had the defendant  not committed the offense; and (4) to require the defendant compensate  the victim for any injury, harm, or loss, including emotional distress, that  occurred as a result of the offense. Factors to Consider in a Potential Expansion of Restitution Authority if it were to Include a Defendant’s Related Conduct and Eliminate the Proximate Cause Requirement

			Related Conduct

Federal courts have the authority to order defendants to pay restitution for  a victim’s losses that resulted from the defendant’s conduct underlying  the offense of conviction. For example, in a case  before the Fourth Circuit where restitution was not allowed for conduct  that was broader than the offense of conviction, the government asserted  that the defendant was the ringleader of a nationwide pickpocketing ring  and submitted a list of victims for restitution that included five financial  institutions and four individuals who had suffered losses. Increased complexity to determine losses. Plea bargaining could be affected. For  example, a stakeholder representing defendants stated that federal  criminal law is not suited to determine injuries such as emotional  distress and pain and suffering, whereas the civil system is set up to  handle these kinds of issues and losses. Further, an association  representing federal prosecutors stated that federal prosecutors and  federal probation officers in criminal cases lack the specialized skills  to determine losses for cases involving compensation for pain,  suffering, and emotional distress. Stakeholders Identified Additional Factors to Consider Related to the Potential Expansion of Courts’ Authority to Award Restitution

Stakeholders we interviewed identified the following factors to consider  related to the potential broadening of courts’ authority to order restitution  generally, in addition to the factors discussed above associated with  particular expansions of federal courts’ authority to order restitution:  Increased restitution debt and collection challenges. These two  stakeholders stated that by broadening federal courts’ authority to  order restitution, the amount of uncollected restitution debt owed to  victims would continue to increase. Seven of 10  stakeholders we interviewed told us that the suitability of criminal  versus civil proceedings should be considered in the potential  broadening of federal courts’ authority to order restitution. Appendix I: Overview of Restitution Provisions for Potential Expansion in the Justice for All Reauthorization Act of 2016

Table 2 summarizes and describes the provisions included in the Justice  for All Reauthorization Act of 2016 for potential expansion of federal  courts’ authority to order restitution and the factors cited by stakeholders  that Congress should consider in broadening existing restitution statutes.  .
Why GAO Did This Study

Victims of federal crimes may be compensated for their losses through criminal proceedings when federal courts order restitution during a defendant's sentencing. Federal law dictates the crimes for which restitution is mandatory versus discretionary and what types of losses may be compensated. Federal prosecutors and Department of Justice officials are responsible for proving and litigating issues related to victims' losses for restitution orders, enforcing orders of restitution, and collecting criminal debt, including unpaid restitution.
The Justice for All Reauthorization Act of 2016, Pub. L. No. 114-324, contains a provision for GAO to conduct a review on the factors that should be considered when broadening restitution provisions. This report describes factors stakeholders believe should be considered for a potential expansion of federal courts' authority to award restitution.
To gather information on factors, GAO interviewed a non-generalizable group of stakeholders knowledgeable about the restitution process, including individuals and entities representing federal judges and court officials, federal prosecutors and Department of Justice officials, victims, and defendants and their counsel. GAO also reviewed relevant federal laws, legal cases, agency documentation, summary data on orders for restitution from fiscal years 1996 through 2016, and the amount of outstanding restitution debt owed in federal cases as of the end of fiscal year 2016.

What GAO Found

Federal courts have authority to award restitution for authorized losses to eligible victims. Generally, victims are those directly and proximately harmed as a result of a defendant's offense of conviction and they may be awarded compensation for their actual or “out-of-pocket” losses. Provisions for the potential expansion of restitution contained in the Justice for All Reauthorization Act of 2016 that GAO reviewed could allow for courts to award restitution to additional victims and for a greater scope of losses. Stakeholders GAO interviewed identified various factors to consider related to these potential expansion provisions, for example:
Restitution for related conduct and no proximate cause requirement . A factor stakeholders stated should be considered in potentially allowing restitution for conduct that is broader than the offense of conviction was that it could be a violation of a defendant's constitutional right to due process because restitution could be awarded for conduct for which the defendant's guilt was not established. In addition, they said it could lead to increased complexity to determine victim losses, which could create challenges for federal prosecutors and could result in less restitution being awarded. For a potential expansion of restitution to compensate harm that was not proximately caused by the defendant (i.e., harm that was not reasonably foreseeable as a result of the offense) stakeholders said factors that should be considered include that the current proximate harm requirement does not present challenges and that such an expansion could lead to additional sentencing-related hearings and litigation.
Restitution to restore victims to their position had the offense not been committed . Stakeholders said this provision is already a goal of federal restitution, but that a potential expansion could allow judges more discretion to order restitution for victim losses not specified by statute, which could help restore the victim to his or her pre-offense condition.
Restitution for any injury, harm, or loss, including emotional distress . A factor stakeholders identified in potentially expanding restitution to cover intangible losses, including emotional distress, included that it could increase the complexity of the restitution process because these are not easily quantified losses. Relatedly, stakeholders said that the suitability of criminal versus civil proceedings should be considered because the civil system, through which crime victims may seek compensation at their own expense, is set up to handle these issues and losses, whereas officials involved in criminal cases lack the specialized skills to determine these kinds of losses.
Stakeholders GAO interviewed identified additional factors related to the potential broadening of courts' authority to order restitution generally; for example, they told GAO that increased restitution debt and collectability challenges should be considered. According to the Department of Justice, the amount of outstanding restitution debt owed in federal cases as of the end of fiscal year 2016 was $110.2 billion. Stakeholders stated that defendants often lack the financial resources to pay restitution and adding to the uncollected restitution debt through a potential expansion of authority could lead to further collection challenges.