We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

NO ONE CARES ABOUT RESTITUTION… UNTIL THEY DO

Neither fish nor fowl, restitution has long been considered to be remedial – intended to make victims whole – rather than punishment. And many defendants who receive a restitution order pay little attention to it because they are much more fixated on the amount they are getting the enormous amount they will be ordered to pay someday.

Unfortunately, someday always comes, leaving defendants struggling in many cases with restitution that has nothing to do with what they can afford, how much they made from the offense, or even the losses of the victims.

Last week, the National Association of Criminal Defense Attorneys published a report on federal restitution that was detailed, surprising, and insightful. The report found that $110 billion of federal restitution debt remains outstanding, with a full $100 billion of that being deemed “uncollectible.” The average amount of a federal criminal restitution order is more than $3.3 million, including not the “full amount” of a victim’s losses, but often includes calculations of pre-and post-judgment interest as well. In 30% of restitution orders, the victims incurred no loss but are entitled to repayment anyway.

Restitution hearings can be held after sentencing hearings, and not every circuit recognizes a defendant’s right to be present at those restitution hearings (although a pending Supreme Court case, Ellingburg v. United States, may have something to say about that). Courts do not have to apportion liability among defendants; when defendants are found “jointly and severally liable,” each defendant is legally responsible for the full amount of the victim’s losses.

Just last week, the 3^rd Circuit ruled that a restitution order where the defendant had stolen from two gun stores was flawed because the stores were awarded the value of the guns and lost sales income from the guns as well.

The NACDL study recommended that Congress and the Supreme Court should recognize that a restitution hearing is part of the sentencing process and therefore is a “critical stage” in the criminal legal process at which the defendant has a right to be present, that because a sentencing is focused on incarceration, a separate restitution hearing should be required to specifically address how much restitution should be ordered and to whom.

The study also argued that federal restitution statutes should be amended to require judges to consider a defendant’s ability to pay, and when payment is ordered, defendants should only be required to reimburse actual losses. The study proposed that joint and several liability should be eliminated.

The chance for any constructive criminal justice legislation with this President and this Congress is minimal. Just last night, we saw the DOJ used on the direct order of the President to charge one of his political enemies. So don’t expect any defendant-friendly changes in the law any time soon, even if they make perfect sense.

Still, the 46-page study, well-crafted and meticulously documented, is worth the download.

NACDL, Empty Pockets and Empty Promises: How Federal Restitution Law Fails Everyone (September 16, 2025)

Ellingburg v. United States, Case No. 24-482 (oral argument October 14, 2025)

United States v. McCormack, Case No. 24-2500, 2025 U.S. App. LEXIS 24139 (3d Cir. September 18, 2025)

 

~ Thomas L. Root

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

PAY THE MAN, SHIRLEY

John O’Hara ripped off his mama.

In February 2019, John pled guilty to wire fraud and bank fraud for stealing over $300,000 from his aged mother, whose finances he was managing. She died a few weeks after his guilty plea – from a broken heart, perhaps? – but she nonetheless passed on leaving her entire estate to her boy John.

At sentencing, the Court ordered John to do 26 months in prison and to pay $332,150 or so in restitution to his mother’s estate. Despite knowing the restitution that John paid to the estate would end up back in his own pocket, the government did not object to the restitution order.

John was released in May 2021 but – contrary to his conditions of supervised release – had paid no restitution since his release from prison. Normally, a supervised releasee would be violated for such a history of noncompliance with release conditions, but the district court was realistic. In May 2023, it issued an order noting that while John had failed for two years “to pay any portion of the restitution as directed by the Court,” still,

inasmuch as the defendant would be the recipient of any restitution he might pay in the future, it is hereby ordered that, within fourteen days, the United States is directed to state its position regarding whether the defendant should be discharged from his existing restitution obligation.

The government suggested that since it couldn’t see the defendant being allowed to pay himself, the Court should substitute the Crime Victims Fund in place of his mother’s estate. John, of course, suggested that the court just forget the whole restitution thing.

The district court ruled that “allowing a perpetrator to effectively receive his own restitution would have the effect of nullifying a court’s restitution order and circumventing Congress’ intent to require mandatory restitution under the Mandatory Victims Restitution Act.” It thus amended the judgment to require John to pay the $332,150 to the Crime Victims Fund.

John appealed, and this week, the 6th Circuit reversed the amended judgment, saying (albeit reluctantly), “Pay the man, Shirley.  And that man is yourself.”

After a court imposes a sentence, the Circuit observed, it has no authority to change the sentence “unless such authority is expressly granted by statute.” Because a restitution order is a part of the sentence, if a court wants to change a restitution order, “it must point to express statutory authorization to do so.”

While 18 USC § 3664 expressly allows modification of restitution order, it lists only “a handful of ways a restitution order may be altered.” It may be amended if the victim’s losses are not ascertainable at sentencing, adjusted due to a defendant’s changed economic circumstances, or modified if the defendant is resentenced.

None of these, the 6th said, apply here, “so the district court could not use them to amend the judgment.”

The Circuit understood the district court’s motivation. “This is a case where a court may be tempted to elide the statute’s text to do what makes practical sense within the spirit and confines of the MVRA,” the appellate court wrote. “But even given the MVRA’s laudable goals, a court does not have discretion to ignore the statutory limits on modifying a final restitution order.”

This is not to say that the courts are without power to deny John his plan to pay himself restitution. The 6th included a detailed footnote observing that Kentucky statute § 381.280(2) excludes people from inheriting the results of their wrongdoing. “We leave the statute’s application to state courts,” the appellate decision states. “We only note that such a statutory scheme seems to fit the occasion and reiterate that it would be in the power of the probate court to apply its terms were the estate to be reopened and receive any money.”

The Circuit’s message: Justice may yet triumph, Mr. O’Hara.

United States v. O’Hara, Case No. 23-5695, 2024 U.S. App. LEXIS 20983 (6th Cir. Aug. 20, 2024)

– Thomas L. Root