Brief — Holsey Ellingburg, Jr., Petitioner v. United States
Supreme Court briefAug 22, 2025
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No. 24-482
IN THE
Supreme Court of the United States
————
HOLSEY ELLINGBURG, JR.,
Petitioner,
v.
UNITED STATES,
Respondent.
————
On Writ of Certiorari to the
United States Court of Appeals
for the Eighth Circuit
————
BRIEF FOR COURT-APPOINTED
AMICUS CURIAE IN SUPPORT OF
THE JUDGMENT BELOW
————
CHRISTOPHER G. MICHEL
JOHN F. BASH
QUINN EMANUEL URQUHART
Counsel of Record
& SULLIVAN, LLP
NICHOLAS J. CALUDA
1300 I St. NW, Suite 900
ALEX VAN DYKE
JACOB M. BLISS
Washington, DC 20005
YUDITH PEREIRA-LOPEZ
(202) 538-8000
QUINN EMANUEL URQUHART
SAM HEAVENRICH
& SULLIVAN, LLP
QUINN EMANUEL URQUHART 300 W. 6th St., Suite 2010
& SULLIVAN, LLP
Austin, TX 78701
295 5th Ave. 9th Floor
(737) 667-6101
New York, NY 10016
johnbash@quinnemanuel.com
(212) 849-7000
August 22, 2025
WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002
i
QUESTION PRESENTED
Whether
criminal
restitution
under
the
Mandatory Victims Restitution Act (MVRA) is penal
for purposes of the Ex Post Facto Clause.
ii
TABLE OF CONTENTS
Page
QUESTION PRESENTED........................................... i
TABLE OF AUTHORITIES....................................... iv
INTEREST OF AMICUS CURIAE ............................ 1
INTRODUCTION ........................................................ 1
JURISDICTION .......................................................... 3
STATEMENT .............................................................. 4
A. Statutory Background ....................................... 4
B. Factual Background .......................................... 8
C. Proceedings Below ............................................. 9
SUMMARY OF ARGUMENT ................................... 11
ARGUMENT ............................................................. 12
I. THE PETITION SHOULD BE DISMISSED
AS IMPROVIDENTLY GRANTED ..................... 12
II. RESTITUTION UNDER THE MVRA IS NOT
CRIMINAL PUNISHMENT ................................ 20
A. Congress Did Not Clearly Intend For The
MVRA To Impose Criminal Punishment....... 20
1. This Court’s Precedent Requires
Conclusive Evidence Of Punitive Intent .. 20
2. Congress Did Not Clearly Intend MVRA
Restitution To Function As Criminal
Punishment ............................................... 23
3. Congress May Reasonably Integrate A
Civil
Remedy
Into
Criminal
Sentencing ................................................. 36
iii
4. The Parties’ Other Arguments Are Not
Relevant To Congressional Intent ............ 40
B. Restitution Imposed Under The MVRA Is
Not Punitive In Form Or Effect ..................... 41
CONCLUSION .......................................................... 52
STATUTORY APPENDIX ....................................... 1a
iv
TABLE OF AUTHORITIES
Page(s)
Cases
Allen v. Illinois,
478 U.S. 364 (1986) .............................................. 23
Black v. Romano,
471 U.S. 606 (1985) .............................................. 49
Bond v. United States,
572 U.S. 844 (2014) .............................................. 21
Browning-Ferris Indus. of Vt., Inc. v. Kelco
Disposal,
492 U.S. 257 (1989) .............................................. 44
Caldwell v. State,
55 Ala. 133 (1876) ................................................ 48
California v. San Pablo & T.R. Co.,
149 U.S. 308 (1893) .............................................. 13
California v. Texas,
593 U.S. 659 (2021) .............................................. 13
City of Monterey v. Del Monte Dunes at Monterey,
Ltd.,
526 U.S. 687 (1999) .............................................. 31
Coffman v. Breeze Corp.,
323 U.S. 316 (1945) .............................................. 13
Collins v. Youngblood,
497 U.S. 37 (1990) .................................................. 9
Conway v. Cal. Adult Auth,
396 U.S. 107 (1969) .............................................. 20
Dep’t of Agric. Rural Dev. Rural Hous. Serv. v.
Kirtz,
601 U.S. 42 (2024) ................................................ 23
Dep’t of Revenue of Mont. v. Kurth Ranch,
511 U.S. 767 (1994) .............................................. 51
v
TABLE OF AUTHORITIES – continued
Page(s)
Dolan v. United States,
560 U.S. 605 (2010) ............ 3, 12, 23, 27, 31, 34, 43
FAA v. Cooper,
566 U.S. 284 (2012) .............................................. 23
Flemming v. Nestor,
363 U.S. 603 (1960) .............................................. 22
Harmelin v. Michigan,
501 U.S. 957 (1991) .............................................. 28
Hester v. United States,
586 U.S. 1104 (2019) ............................................ 31
Helvering v. Mitchell,
303 U.S. 391 (1938) ............................. 25-26, 44, 51
Hicks ex rel. Feiock v. Feiock,
485 U.S. 624 (1988) .............................................. 23
Hinds v. Lynch,
790 F.3d 259 (1st Cir. 2015) ................................ 38
Hopkins v. Watson,
108 F.4th 371 (5th Cir. 2024) (en banc),
cert. denied, 145 S. Ct. 1138 (2025) ..................... 38
Hudson v. United States,
522 U.S. 93 (1997) ......................... 23, 25, 42-44, 50
Jackson v. Birmingham Bd. of Educ.,
544 U.S. 167 (2005) .............................................. 41
Jennings v. Rodriguez,
583 U.S. 281 (2018) .............................................. 21
Kansas v. Colorado,
533 U.S. 1 (2001) .................................................. 18
Kansas v. Hendricks,
521 U.S. 346 (1997) .............................................. 23
Kelly v. Robinson,
479 U.S. 36 (1986) .......................................... 34, 49
vi
TABLE OF AUTHORITIES – continued
Page(s)
Kennedy v. Mendoza-Martinez,
372 U.S. 144 (1963) ....................... 11, 20-21, 41, 48
Lac du Flambeau Band of Lake Superior
Chippewa Indians v. Coughlin,
599 U.S. 382 (2023) .............................................. 23
Moxon Corp. v. Comm’r,
2025 WL 1825507 (T.C. July 2, 2025) ................. 26
Murphy v. United States,
272 U.S. 630 (1926) ........................................ 22, 38
Padilla v. Kentucky,
559 U.S. 356 (2010) ........................................ 24, 38
Paroline v. United States,
572 U.S. 434 (2014) ............................. 10, 32-33, 50
Pasquantino v. United States,
544 U.S. 349 (2005) .........................................32-33
Skilling v. United States,
561 U.S. 358 (2010) .............................................. 21
Smith v. Doe,
538 U.S. 84 (2003) .. 20, 22, 24, 36-38, 42-44, 49-51
S. Union Co. v. United States,
567 U.S. 343 (2012) .............................................. 30
TransUnion LLC v. Ramirez,
594 U.S. 413 (2021) .............................................. 13
United States v. Anglian,
784 F.2d 765 (6th Cir. 1986),
cert. denied, 479 U.S. 841 (1986) ......................... 16
United States v. Battista,
575 F.3d 226 (2d Cir. 2009) ................................... 6
United States v. Borino,
123 F.4th 233 (5th Cir. 2024) .............................. 44
vii
TABLE OF AUTHORITIES – continued
Page(s)
United States v. Bruchey,
810 F.2d 456 (4th Cir. 1987) ................................ 16
United States v. Coccia,
598 F.3d 293 (6th Cir. 2010) ................................ 37
United States v. Jackson,
189 F.3d 820 (9th Cir. 1999) ................................ 37
United States ex rel. Marcus v. Hess,
317 U.S. 537 (1943) ........................................ 24, 51
United States v. Newman,
144 F.3d 531 (7th Cir. 1998) ................................ 44
United States v. One Assortment of 89 Firearms,
465 U.S. 354 (1984) ..................23-24, 32, 38, 50-51
United States v. O’Neal,
180 F.3d 115 (4th Cir. 1999),
cert. denied, 528 U.S. 980 (1999) ......................... 38
United States v. Rivera-Solís,
733 F. Supp. 3d 46 (D.P.R. 2024) ........................ 27
United States v. Ursery,
518 U.S. 267 (1996) ............ 12, 20, 23, 41-42, 50-51
United States v. W.B.H.,
664 F.3d 848 (11th Cir. 2011),
cert. denied, 568 U.S. 978 (2012) ......................... 37
United States v. Ward,
448 U.S. 242 (1980) ........................................ 41, 51
United States v. Winston,
850 F.3d 377 (8th Cir. 2017) ................................ 37
Yee v. City of Escondido,
503 U.S. 519 (1992) .............................................. 18
Zacchini v. Scripps-Howard Broad. Co.,
433 U.S. 562 (1977) .............................................. 13
viii
TABLE OF AUTHORITIES – continued
Page(s)
Zadvydas v. Davis,
533 U.S. 678 (2001) .............................................. 21
Constitutional Provisions, Statutes & Rule
U.S. Const. amend. VII ............................................. 31
U.S. Const. art. I, § 9, cl. 3 .......................................... 9
U.S. Const. art. I, § 10, cl. 1 ........................................ 9
An Act for the Punishment of Certain Crimes
Against the United States, ch. 9, 1 Stat. 112
(1790) .................................................................... 47
§ 16, 1 Stat. 116 ............................................. 47
An Act to Regulate Trade and Intercourse with
the Indian Tribes, and to Preserve Peace on
the Frontiers, ch. 13, 2 Stat. 139 (1802) ............. 47
§ 4, 2 Stat. 141 ............................................... 47
Firearm Excise Tax Improvement Act, Pub. L.
No. 111-237, 124 Stat. 2497 (2010) ..................... 25
§ 3, 124 Stat. 2497 .......................................... 25
Mandatory Victims Restitution Act, Pub. L. No.
104-132, Tit. II, Subtit. A., 110 Stat. 1227
(1996) .................................................................. 1, 5
§ 202, 110 Stat. 1227 ...................................... 19
§ 204(a), 110 Stat. 1227-29 ............................... 6
§ 205(a), 110 Stat. 1229-31 ............................... 7
§ 205(a)(1)(C), 110 Stat 1229............................ 7
§ 205(a)(1)(E), 110 Stat 1229............................ 7
§ 205(a)(2), 110 Stat. 1230.......................... 7, 14
§ 206, 110 Stat. 1232-36 ................................... 7
§ 206(a), 110 Stat. 1232-36 ............................... 6
§ 207(c)(2)(F), 110 Stat. 1238 .......................... 8
ix
TABLE OF AUTHORITIES – continued
Page(s)
§ 207(c)(3), 110 Stat. 1238 ............................... 8
§ 211, 110 Stat. 1241 .................................. 8, 30
Minor and Technical Criminal Law Amendments
Act, Pub. L. No. 100-690, Tit. VII, Subtit. B,
102 Stat. 4181 (1988) ............................................. 5
§ 7042, 102 Stat. 4399-4400 ............................. 5
Victim and Witness Protection Act, Pub. L. No.
97-291, 96 Stat. 1248 (1982) .................................. 1
§ 2(b)(2), 96 Stat. 1249 ..................................... 4
12 U.S.C.§ 86 ............................................................. 25
18 U.S.C.
§ 175c(c) ................................................................ 25
§ 218 ..................................................................... 25
§ 229A(a)............................................................... 25
§ 401 ..................................................................... 48
§ 670(c).................................................................. 25
§ 924(c) (1994) ........................................................ 8
§ 982 ..................................................................... 24
§ 1350(c)................................................................ 25
§ 1716E(e) ............................................................. 25
§ 2113(a) (1994) ...................................................... 8
§ 2113(d) (1994) ...................................................... 8
§ 2248 note ............................................................. 8
§ 2332g(c).............................................................. 25
§ 2332h(c) ............................................................. 25
§ 2333(a) ............................................................... 39
§ 2259............................................................... 32-33
§ 2707(a) ............................................................... 39
§ 3551.................................................................... 25
§ 3554.................................................................... 24
§ 3556.............................................................. 18, 25
x
TABLE OF AUTHORITIES – continued
Page(s)
§ 3600A(f) ............................................................. 25
§ 3612(f) (1994)..................................................... 14
§ 3612(f) (2018)..................................................... 15
§ 3612(f)(1).............................................................. 8
§ 3613(b) ..............................................................8-9
§ 3613(b) (1994) ...................................................... 5
§ 3614.................................................................... 49
§ 3614(b) ............................................................... 39
§ 3662.................................................................... 39
§ 3663................................ 1, 4, 7, 10, 14, 18, 19, 29
§ 3663(a)(1)(B) ........................................................ 1
§ 3663(a)(1)(B)(i)(II) ......................................... 7, 16
§ 3663(a)(1) (1994) ................................................. 4
§ 3663(b) (1994) ...................................................4-5
§ 3663(b) ............................................................... 16
§ 3663(c).......................................................... 28, 43
§ 3663(c)(1) ............................................................. 7
§ 3663(c)(2) ............................................................. 7
§ 3663(c)(2)(A) ...................................................... 29
§ 3663(c)(3) ....................................................... 7, 29
§ 3663(d) (1994) .................................................... 14
§ 3663(e) (1994) ...................................................... 5
§ 3663(h)(1) (1994) ................................................. 5
§ 3663A ....................... 1, 6, 10-11, 16, 19, 26-27, 39
§ 3663A(a)............................................................. 26
§ 3663A(a)(1) .............................................. 6, 16, 24
§ 3663A(a)(2) ........................................................ 29
§ 3663A(a)(3) .................................................. 29, 44
§ 3663A(b)......................................................... 6, 26
§ 3663A(b)(1) ....................................................... 31
§ 3663A(c)(3) ..................................................... 6, 16
xi
TABLE OF AUTHORITIES – continued
Page(s)
§ 3663A(c)(3)(B) .................................................... 29
§ 3664(a) (1994) ............................................. 4-5, 16
§ 3664(d)(1) ........................................................... 27
§ 3664(d)(2) ........................................................... 27
§ 3664(d)(3) .......................................................... 49
§ 3664(d)(5) ................................................. 7, 27, 31
§ 3664(e) ............................................................... 31
§ 3664(f)(1)(A) ....................................... 7, 26, 44, 50
§ 3664(f)(2)............................................................ 49
§ 3664(f)(3)............................................................ 49
§ 3664(f)(3)(B) ....................................................... 29
§ 3664(g)(1) ........................................................... 28
§ 3664(g)(2) ........................................................... 28
§ 3664(i) ................................................................ 26
§ 3664(j)(2) .................................................. 6, 27, 44
§ 3664(k) ............................................................... 30
§ 3664(l) .......................................................... 37, 51
§ 3664(m)(1)(B) ................................................. 6, 27
§ 3665.................................................................... 39
§ 3666.................................................................... 39
§ 3672.................................................................... 39
26 U.S.C. § 6707A...................................................... 25
26 U.S.C. § 7806(b) .................................................... 26
28 U.S.C. § 1254(1) ...................................................... 3
47 U.S.C. § 205 .......................................................... 25
Ala. Code § 3733 (1867) ............................................ 48
Ala. Code § 3738 (1867) ............................................ 48
S. Ct. R. 14.1(a).......................................................... 18
Other Authorities
BLACK’S LAW DICTIONARY (12th ed. 2024)........... 24, 45
xii
TABLE OF AUTHORITIES – continued
Page(s)
Bryan A. Garner, A DICTIONARY OF MODERN
LEGAL USAGE (1995) ............................................. 24
COLLECTED WORKS OF JAMES WILSON (Kermit L.
Hall & Mark David Hall eds., 2007) ................... 46
Comment, Heidi M. Grogan, Characterizing
Criminal Restitution Pursuant to the Mandatory Victims Restitution Act: Focus on the
Third Circuit, 78 TEMP. L. REV. 1079 (2005) ...... 35
EDGAR J. MCMANUS, LAW AND LIBERTY IN EARLY
NEW ENGLAND (1993) ........................................... 47
H.R. Rep. No. 104-16 (1995).................................. 5, 35
John G. Fleming, The Collateral Source Rule and
Loss Allocation in Tort Law, 54 CALIF. L. REV.
1478 (1966) ........................................................... 45
Matthew Spohn, Note, A Statutory Chameleon:
The Mandatory Victim Restitution Act’s
Challenge to the Civil/Criminal Divide, 86
IOWA L. REV. 1013 (2001) ..................................... 34
Note, Victim Restitution in the Criminal Process:
A Procedural Analysis, 97 HARV. L. REV. 931
(1984) .................................................................... 46
OXFORD ENGLISH DICTIONARY (3d ed. 2010 rev.) ..... 24
Ronald Reagan, Remarks on Signing the Missing
Children Act and the Victim and Witness
Protection Act of 1982, Pub. Pap. of the Pres.
1982 (Oct. 12, 1982) ............................................... 4
S. Rep. No. 104-179 (1995) ...................................34-36
Stephen Schafer, Restitution to Victims of
Crime—An Old Correctional Aim Modernized,
50 MINN. L. REV. 243 (1965) ................................ 45
xiii
TABLE OF AUTHORITIES – continued
Page(s)
THE COMPLETE WORKS OF EDWARD LIVINGSTON
ON CRIMINAL JURISPRUDENCE (1873) ................ 45
141 Cong. Rec. S16827 (daily ed. Nov. 8, 1995) ....... 35
141 Cong. Rec. S19280 (daily ed. Dec. 22, 1995)...... 35
142 Cong. Rec. H3606 (daily ed. Apr. 18, 1996) ....... 35
1
INTEREST OF AMICUS CURIAE
By order dated May 15, 2025, this Court invited
John F. Bash to brief and argue this case, as amicus
curiae, in support of the judgment below.
INTRODUCTION
The Court invited amicus to defend the judgment
below because the United States has taken the position that “restitution under the Mandatory Victims
Restitution Act of 1996 [MVRA], Pub. L. No. 104-132,
Tit. II, Subtit. A, 110 Stat. 1227, is a criminal punishment for purposes of the Ex Post Facto Clause.” U.S.
Br. I, 12; see Pet. I. The nature of restitution under
the MVRA, however, is not implicated by this case because petitioner’s order of restitution was issued under a different statute. The Court should therefore
dismiss the petition as improvidently granted.
Title 18 of the United States Code contains two distinct restitution regimes relevant here. The first, enacted in 1982 and codified primarily at Section 3663,
is the Victim and Witness Protection Act of 1982
(VWPA), Pub. L. No. 97-291, 96 Stat. 1248. Under the
VWPA, restitution is discretionary. A district court
may decline to order any restitution at all, and, as
originally enacted, the statute permitted awards of
partial restitution. In deciding whether to impose
VWPA restitution, a court is free to take into account
any relevant considerations, such as the defendant’s
culpability, the nature of the offense, and ordinary penological objectives like deterrence and just punishment. 18 U.S.C. § 3663(a)(1)(B).
The second restitution regime, enacted in 1996 and
codified primarily at Section 3663A, is the MVRA.
2
The MVRA applies to violent crimes and property
crimes, and it generally requires courts to impose full
restitution without regard to considerations like culpability, appropriate punishment, or a defendant’s
ability to pay. Its nearly exclusive focus is making victims whole.
Although the question presented pertains only to
restitution awarded under the MVRA, petitioner’s
restitution order was issued under the discretionary
VWPA. The district court so found below, Pet.App.14a
n.2, and in the court of appeals, petitioner repeatedly
acknowledged that the sentencing court had entered
the order under the version of the VWPA in effect before the MVRA’s enactment. This case therefore does
not implicate the question presented.
Should the Court nevertheless reach that question,
it should hold that MVRA restitution is not criminal
punishment. To determine whether a sanction qualifies as punishment for Ex Post Facto Clause purposes,
this Court asks whether there is conclusive evidence
that Congress intended to impose punishment and, if
not, whether the statute is so punitive in form and effect that it must be deemed punishment. The MVRA
does not come close to meeting those high standards.
Congress did not describe MVRA restitution as
“criminal,” and the term “restitution” is drawn from
the sphere of civil litigation. The MVRA’s mandatoryrestitution regime is designed to provide full victim
compensation—no more, no less—and the statute
withholds from judges the power to consider whether
mandatory restitution would advance penological
goals. Victims enjoy notice rights and remedies to enforce restitution orders, and they may reopen
3
proceedings to seek compensation for additional
losses. The legislative record shows that Congress
sought to address a staggering amount of uncompensated property damage and hospitalizations caused by
criminal offenses.
It is thus unsurprising that in this Court’s only
substantial analysis of the MVRA, the Court held that
the statute’s “substantive purpose” is “to ensure that
victims of a crime receive full restitution”—a holding
that the government ignores and petitioner buries in
an “accord” citation. Dolan v. United States, 560 U.S.
605, 612 (2010). The MVRA is a compensatory regime, not a punitive one.
Petitioner and the government largely focus on
certain procedural features of the MVRA scheme that
are in essence just one feature: Congress integrated
the MVRA’s compensatory remedy into the sentencing
process. But it is well established that not every obligation imposed during sentencing is criminal punishment. Legislatures have long integrated matters like
sex-offender registration, drug testing, and DNA testing into the sentencing process without a punitive intent. And it was entirely sensible for Congress to
choose the efficient approach of awarding victims restitution when a convicted defendant is sentenced. The
alternative—forcing people who have been brutalized
or defrauded to hire lawyers to sue their victimizers—
would leave victims far worse off. That salutary policy
choice does not transform an overtly compensatory regime into punishment.
JURISDICTION
This Court has statutory jurisdiction under 28
U.S.C. § 1254(1), but answering the question
4
presented would yield an advisory opinion in excess of
the Court’s Article III jurisdiction.
STATUTORY PROVISIONS INVOLVED
A full version of the MVRA as enacted in 1996 is
reproduced in the attached appendix.
STATEMENT
A. Statutory Background
In 1982, Congress enacted and President Reagan
signed the VWPA “to ensure that the Federal Government does all that is possible within limits of available
resources to assist victims * * * without infringing on
the constitutional rights of the defendant.” § 2(b)(2),
96 Stat. 1249. In signing the bill, President Reagan
lamented that crime victims had historically been “either ignored or simply used as tools to identify and
punish offenders,” leaving them “to suffer physical,
psychological, or financial hardship, while the criminal justice system remains unresponsive to the victim’s real needs.” Ronald Reagan, Remarks on
Signing the Missing Children Act and the Victim and
Witness Protection Act of 1982, Pub. Pap. of the Pres.
1982 (Oct. 12, 1982), https://tinyurl.com/2hj44ze3.
Later codified at Sections 3663 and 3664 of Title
18, the VWPA authorized, but did not require, courts
to order defendants convicted of offenses under Title
18 or other specified offenses to “make restitution to
any victim” for losses caused by the offenses. 18
U.S.C. §§ 3663(a)(1) and (b), 3664(a) (1994). In exercising that discretion, courts considered the loss sustained by the victims, as well as the financial
resources, financial needs, and earning ability of the
5
defendant, in addition to any other relevant factors.
Id. § 3664(a) (1994). The VWPA generally tied the
maximum amount of restitution to the loss or injury
of the victim, with set-offs for compensation received
from other sources or damages recovered in civil litigation, and it permitted courts to award partial restitution. Id. §§ 3663(b) and (e) (1994).
A 1988 amendment provided that a defendant’s
VWPA restitution obligation expired 20 years from
the entry of judgment. See Minor and Technical Criminal Law Amendments Act of 1988, Pub. L. No. 100690, Tit. VII, Subtit. B, § 7042, 102 Stat. 4181, 43994400 (18 U.S.C. § 3663(h)(1) (1994)); 18 U.S.C.
§ 3613(b) (1994).
Fourteen years after the passage of the VWPA, in
April 1996, Congress enacted and President Clinton
signed the MVRA as part of the Antiterrorism and Effective Death Penalty Act. Pub. L. 104-132, Tit. II,
Subtit. A, 110 Stat. 1227. In enacting the law, Members of Congress considered data showing that in 1991
alone “crime against people and households resulted
in an estimated $19.1 billion in losses” and that
“[c]rime-related injuries typically amount for more
than 700,000 days of hospitalization annually.” H.R.
Rep. No. 104-16, at 4 (1995). The House report expressed concern that current “law does not * * * provide for a means to make victims whole” and
explained that the bill “strives to provide those who
suffer the consequences of crime with some means of
recouping the personal and financial losses resulting
from crime.” Id. at 4-5.
The MVRA contains several provisions of particular relevance here.
6
First, the MVRA created a new regime of mandatory restitution for specified offenses, including crimes
of violence and property offenses, and removed them
from the ambit of the VWPA. See § 204(a), 110 Stat.
1227-29. Under that new system, codified at Section
3663A of Title 18, district courts must impose restitution to compensate victims for specified categories of
losses, including lost income, property damage, and
medical expenses, and it must order the return of stolen property. 18 U.S.C. § 3663A(a)(1) and (b). Because all the covered offenses are excluded from the
VWPA, the “MVRA and VWPA do not overlap.”
United States v. Battista, 575 F.3d 226, 231 n.3 (2d
Cir. 2009). The only exception to Section 3663A’s
mandatory regime is found in Subsection (c)(3), which
provides that “[t]his section shall not apply” to certain
covered non-violent offenses when the number of victims renders restitution “impracticable” or when calculating restitution is so “complex” that it would
unduly “complicate or prolong the sentencing process.”
Second, the MVRA replaced Section 3664 with a
new section governing the procedures for imposing
and enforcing restitution orders under both the
VWPA and the MVRA. § 206(a), 110 Stat. 1232-36.
Among other features, the revised Section 3664 maintains the preexisting set-off for victim compensation
obtained through civil litigation but does not include
a set-off for compensation obtained elsewhere. 18
U.S.C. § 3664(j)(2). It also empowers victims to enforce restitution orders by placing civil liens on defendants’ property. Id. § 3664(m)(1)(B). And it
enables victims, upon discovery of “further losses”
7
after sentencing, to request an amended order of restitution. Id. § 3664(d)(5).
The revised Section 3664 provides that any order
of restitution must cover “the full amount of each victim’s losses * * * without consideration of the economic
circumstances of the defendant.”
18 U.S.C.
§ 3664(f)(1)(A). But the MVRA left in place the requirement that courts consider a defendant’s financial
circumstances and other relevant factors in deciding
whether to order VWPA restitution at all, without extending that provision to the new scheme of mandatory restitution. Id. § 3663(a)(1)(B)(i)(II).
Third, the MVRA made a handful of amendments
to the provision governing VWPA restitution (Section
3663). § 205(a), 110 Stat. 1229-31. The majority of
these were for minor clean-up or consistency, such as
specifying that the VWPA does not apply to offenses
now covered by the MVRA’s mandatory-restitution regime and relocating certain procedural provisions.
§§ 205(a)(1)(C), (a)(1)(E), and (a)(2), 206, 110 Stat.
1229-30, 1232-36. The MVRA’s only meaningful expansion of VWPA restitution was to add a new Subsection (c) providing that for certain drug offenses
without an identifiable victim, courts could impose
restitution in the amount of the “public harm” caused
by an offense. 18 U.S.C. § 3663(c)(1)-(2). That restitution must be ratably distributed to stategovernment entities that “administer crime victim assistance” (65%) and receive federal grants to prevent
substance abuse (35%). Id. § 3663(c)(3).
Fourth, the MVRA provided that “liability” for
both discretionary and mandatory restitution awards
“shall terminate the later of 20 years from the entry
8
of judgment” (the original VWPA period) “or 20 years
after a [defendant’s] release from imprisonment.”
§ 207(c)(3), 110 Stat. 1238 (18 U.S.C. § 3613(b)).
Fifth, the MVRA required the accrual of interest
for restitution awards exceeding $2,500 unless the defendant lacks the ability to pay interest.
§ 207(c)(2)(F), 110 Stat. 1238 (18 U.S.C. § 3612(f)(1)).
Finally, the MVRA stated that “to the extent constitutionally permissible,” the statute would apply to
“sentencing proceedings in cases in which the defendant is convicted on or after the date of enactment.”
§ 211, 110 Stat. 1241 (18 U.S.C. § 2248 note).
B. Factual Background
In 1995, petitioner and an accomplice robbed a
Georgia bank with a sawed-off shotgun, seizing
$15,134.50. Pet.App.13a, 27a-28a. In August 1996,
after the MVRA had been in effect for four months, a
federal jury in the Southern District of Georgia convicted petitioner of bank robbery and using a firearm
during a crime of violence, 18 U.S.C. §§ 924(c), 2113(a)
and (d) (1994). Pet.App.13a, 17a.
The district court sentenced petitioner to 322
months in prison. Pet.App.19a. In determining petitioner’s restitution obligation, the court applied the
version of the VWPA in effect before the enactment of
the MVRA. See Pet.App.14a n.2; pp. 14-15, infra. Exercising its discretion under that statute, the court required petitioner to pay $7,567.25 to the bank—half of
what petitioner and his accomplice had stolen.
Pet.App.24a-28a; U.S. Br. 9.
In 2022, petitioner completed his term of imprisonment after having satisfied only a quarter of his
9
restitution obligation. See Pet.App.3a. His probation
officer continued to seek restitution payments with interest, citing the MVRA’s liability cutoff, 18 U.S.C.
§ 3613(b), which does not relieve petitioner of his obligation until 2042. Pet. Br. 7.
C. Proceedings Below
Petitioner filed a pro se motion in the Western District of Missouri (where the sentencing court had
transferred his supervised release) to challenge the
continued enforcement of his restitution obligation
under the Constitution’s federal Ex Post Facto Clause,
U.S. Const. art. I, § 9, cl. 3. See Pet.App.12a. Under
that clause and its counterpart for state laws, U.S.
Const. art. I, § 10, cl. 1, “[l]egislatures may not retroactively alter the definition of crimes or increase
the punishment for criminal acts.” Collins v. Youngblood, 497 U.S. 37, 43 (1990). Petitioner argued that
the MVRA’s liability cutoff, which extended the end of
his restitution liability from 2016 to 2042, had retroactively increased his punishment because the MVRA
did not exist when he robbed the bank in 1995.
The district court denied his motion. Pet.App.16a.
After examining the documents from petitioner’s sentencing, the court concluded that “rather than applying the MVRA in ordering restitution, the sentencing
court instead applied the Victim and Witness Protection Act of 1982.” Pet.App.14a n.2. The court then
held that extending the period of liability for a preexisting restitution obligation does not qualify as an increase in punishment for purposes of the Ex Post
Facto Clause. Pet.App.15a.
Petitioner appealed. Now represented by counsel,
he acknowledged that the sentencing court had
10
imposed his restitution obligation under the version of
the VWPA in effect before the MVRA’s enactment.
See Pet. C.A. Op. Br. 8-9; C.A. Oral Arg. 0:50-0:58;
6:50-6:58, https://tinyurl.com/e64x859r. He nevertheless focused his constitutional argument on the
MVRA’s mandatory-restitution provision, Section
3663A. See Pet. C.A. Op. Br. 17-30 (discussing Eighth
Circuit cases addressing Section 3663A); Pet. C.A. Reply Br. 3-15 (citing only Section 3663A). He also
raised a new argument that applying the MVRA’s interest provision to his restitution obligation violated
the Ex Post Facto Clause as well. Pet. C.A. Op. Br.
49-55; see U.S. C.A. Br. 4.
The Eighth Circuit affirmed on the ground that,
under circuit precedent, MVRA restitution is not criminal punishment and therefore is not subject to the Ex
Post Facto Clause. Pet.App.4a-7a. Following petitioner’s framing of the issue, the court discussed only
MVRA restitution, noting its prior holding that the
“primary purpose” of MVRA restitution is “remedial
or compensatory,” not punitive. Pet.App.4a-6a (quoting Paroline v. United States, 572 U.S. 434, 456
(2014)). In a footnote, the court rejected petitioner’s
new argument about mandatory interest on the same
ground. Pet.App.7a n.2.
Petitioner filed a petition for a writ of certiorari.
The petition did not disclose that the sentencing court
had imposed his restitution obligation under the
VWPA. Instead, the petition presented the question
whether “criminal restitution under the [MVRA] is penal,” extensively discussed Section 3663A, and highlighted conflicting appellate decisions about whether
MVRA restitution qualifies as criminal punishment.
Pet. I, 8-21.
11
After the Court granted certiorari, the government
joined petitioner on the question presented. The
Court appointed amicus to defend the Eighth Circuit’s
judgment.
SUMMARY OF ARGUMENT
I. The Court should dismiss the petition as improvidently granted. The question presented asks
whether “restitution under the [MVRA] is penal for
purposes of the Ex Post Facto Clause.” Pet. I. But the
sentencing court here imposed restitution under the
pre-MVRA version of the VWPA. Answering a question about the nature of MVRA restitution would thus
be purely advisory.
II. Should the Court reach the merits, it should
hold that the MVRA restitution is not criminal punishment and therefore affirm the judgment of the
Eighth Circuit.
A. Under the two-step framework of Kennedy v.
Mendoza-Martinez, 372 U.S. 144 (1963), the Court
first asks whether there is “conclusive evidence of congressional intent as to the penal nature of a statute.”
Id. at 169. No such conclusive evidence exists here.
Congress did not use the label “criminal,” instead employing a term, “restitution,” that ordinarily signifies
a civil remedy. The mandatory regime codified at Section 3663A is designed exclusively to compensate victims for the full amount of specified categories of loss.
The restitution award is capped at the victim’s loss
and must be offset by civil judgments; a sentencing
court has no discretion to award less than the victim’s
loss; the court may not take into account the ordinary
penological objectives of criminal sentencing; and victims can both enforce restitution orders through civil
12
liens and seek increased awards as they discover new
losses. This Court has accordingly described the
MVRA’s “substantive purpose” as “primarily to ensure
that victims of a crime receive full restitution.” Dolan,
560 U.S. at 612. That conclusion is fortified by the
constitutional-avoidance canon and the MVRA’s legislative record.
The parties’ contrary arguments largely flow from
Congress’s choice to integrate restitution into the sentencing process rather than require victims to file separate civil suits. But under this Court’s precedent,
that procedural efficiency—itself critical to ensuring
full victim compensation—does not establish that
Congress intended MVRA restitution to operate as
criminal punishment.
B. At the second step of the Mendoza-Martinez
framework, the Court asks whether the remedy at issue is “so punitive in form and effect as to render [it]
criminal.” United States v. Ursery, 518 U.S. 267, 290
(1996). MVRA restitution is not. It directly advances
the non-punitive purpose of victim compensation; it is
proportional in relation to that purpose; it is purely
monetary; and there is no relevant historical tradition
of treating victim compensation as punitive. The Constitution thus does not demand that MVRA restitution be classified as a form of punishment.
ARGUMENT
I. THE PETITION SHOULD BE DISMISSED AS
IMPROVIDENTLY GRANTED
This Court granted certiorari to decide “[w]hether
criminal restitution under the Mandatory Victim[s]
Restitution Act (MVRA) is penal for purposes of the
13
Ex Post Facto Clause.” Pet. I. That question, however, is not presented by this case because petitioner’s
order of restitution was issued under the preexisting
discretionary regime of the VWPA, not under the
MVRA. The Court should accordingly dismiss the petition as improvidently granted.
A. “The Constitution gives federal courts the
power to adjudicate only genuine ‘Cases’ and ‘Controversies.’” California v. Texas, 593 U.S. 659, 668 (2021)
(citation omitted). A corollary of that constraint on
the judicial power is that “federal courts do not issue
advisory opinions.” TransUnion LLC v. Ramirez, 594
U.S. 413, 424 (2021). In other words, courts do not
declare “principles or rules of law which cannot affect
the result as to the thing in issue in the case before”
them. California v. San Pablo & T.R. Co., 149 U.S.
308, 314 (1893). For that reason, if it becomes apparent that the question presented is “without legal significance” to the “rights of the parties,” Coffman v.
Breeze Corp., 323 U.S. 316, 324 (1945), the case should
be “dismissed as improvidently granted,” Zacchini v.
Scripps-Howard Broad. Co., 433 U.S. 562, 566 (1977).
Answering the question presented here would
yield an advisory opinion. Petitioner asks this Court
to decide the nature of “criminal restitution under the
[MVRA],” Pet. I, but the sentencing court did not apply the MVRA in imposing restitution even though the
statute was in effect at that time. In the proceedings
below, the district court determined that “rather than
applying the MVRA in ordering restitution, the sentencing court instead applied the Victim and Witness
Protection Act of 1982.” Pet.App.14a n.2. For support, the court cited the (now-sealed) 1996 presentence investigation report and 1996 judgment stating
14
that under “18 U.S.C. § 3663, restitution may be ordered in this case.” Pet.App.14a n.2 (emphasis added
and quotation omitted).
On appeal, petitioner’s opening brief agreed that
“the district court judge appears to have sentenced petitioner under the VWPA, the statute in effect at the
time of the offense conduct.” Pet. C.A. Op. Br. 8; see
id. at 50; Pet. C.A. Reply 29-30 (similar). Petitioner
enumerated “several indicators” supporting that conclusion and showing that he was in fact sentenced under the pre-MVRA version of the VWPA’s Section
3663:
First, page seven of the judgment references 18 U.S.C. § 3663(d), which empowered
the judge to deny restitution in certain situations. That provision was part of the VWPA, see
18 U.S.C. § 3663(d) (1994), but was struck by
the MVRA, see MVRA, Pub. L. No. 104-132,
§ 205(a)(2), 110 Stat. 1214, 1229 (1996).
Second, the judgment form indicates that
the form had last been revised in March 1995
(“Rev 3/95”), which was over a year before the
MVRA was enacted.
Finally, the fine section on page five of the
judgment form references 18 U.S.C. § 3612(f)
(1994), requiring interest on certain fines, but
the restitution section on the same page is silent on interest. Unlike Mr. Ellingburg’s judgment form, post-MVRA judgment forms now
reference the requirement of interest for certain
restitution orders, as required by the MVRA.
See 18 U.S.C. § 3612(f) (2018).
15
Pet. C.A. Op. Br. 8-9 (some citations omitted). At oral
argument, petitioner’s counsel confirmed that petitioner’s “restitution order was entered pursuant to the
Victims [sic] Witness Protection Act.” C.A. Oral Arg.
0:50-0:58; see id. at 6:50-6:58 (same).
Petitioner himself identifies the likely reason that
the sentencing court applied the pre-MVRA version of
the VWPA: “Soon after the MVRA’s enactment, the
Solicitor General directed United States Attorney’s offices nationwide not to apply the MVRA retroactively,” i.e., “to offenses occurring before the
enactment of the Act.” Pet. Br. 30 (quotation omitted).
Prosecutors were instead told “to apply the VWPA to
cases involving offense conduct which occurred prior
to April 24, 1996, regardless of the actual date of conviction.” U.S. Br. 6, United States v. Edwards, 162
F.3d 87 (3d Cir. 1998) (No. 98-1055), 1998 WL
34084073, at *6. That is what appears to have happened here. Although it is unclear whether the Solicitor General issued formal guidance before
petitioner’s sentencing, the Solicitor General’s Office
and the Criminal Appellate Section often provide informal advice to U.S. Attorney’s Offices before issuing
a nationwide memorandum.
Petitioner was therefore never subject to “restitution under the [MVRA],” Pet. I, and the question presented is not implicated by this case.
B. The fact that petitioner has challenged the
wrong statute alone justifies dismissing the petition.
But it is worth noting that the two statutes differ in
ways that may bear on this Court’s analysis of the constitutional question—a question that depends on
whether Congress clearly intended restitution to
16
operate as punishment and, if not, whether restitution is so punitive that it must be classified as punishment. See p. 20, infra.
In particular, under the VWPA, in deciding
whether to impose restitution, a sentencing court can
consider “factors” beyond the victim’s loss “as the
court
deems
appropriate,”
18
U.S.C.
§ 3663(a)(1)(B)(i)(II), such as the defendant’s characteristics, the circumstances of the offense, and ordinary penological objectives—i.e., the considerations
that typically inform a criminal sentence. See United
States v. Bruchey, 810 F.2d 456, 458 (4th Cir. 1987);
United States v. Anglian, 784 F.2d 765, 768 (6th Cir.
1986), cert. denied, 479 U.S. 841 (1986). And under
the version of the VWPA applied in this case, a court
could adjust the amount of restitution in light of such
concerns. See 18 U.S.C. § 3664(a) (1994). By contrast,
under the MVRA’s mandatory-restitution regime, 18
U.S.C. § 3663A, a restitution award must cover all
cognizable victim losses without regard to any consideration other than (for non-violent offenses) impracticability or burden on the court. See 18 U.S.C.
§ 3663A(a)(1) and (c)(3). In addition, the legislative
history of the two laws naturally differs, with the
MVRA’s record more explicitly describing Congress’s
laser focus on making victims whole. See pp. 35-36,
infra.
For at least those reasons, the two laws pose two
different constitutional questions. The parties, in
fact, recognize that the two statutes are distinct, with
petitioner referring to the VWPA as the MVRA’s “predecessor” or “progenitor.” Pet. Br. 11, 28; see U.S. Br.
6. Resolving a question about one scheme in a case
17
involving the other would be a paradigmatic advisory
opinion.
C. The parties have not acknowledged (or disputed) that petitioner’s restitution obligation was imposed under the pre-MVRA version of the VWPA,
much less explained why they believe petitioner could
benefit from a holding that “restitution under the
[MVRA] is penal,” Pet. I. They may raise either of the
following arguments, but they each lack merit.
First, the parties may argue that because the
MVRA contains the challenged provisions extending
the expiration date of petitioner’s restitution obligation and mandating the payment of interest, a ruling
that MVRA restitution is criminal punishment would
entitle petitioner to continue to pursue his Ex Post
Facto Clause claim. That is wrong. A retroactive extension of petitioner’s restitution term would implicate the Ex Post Facto Clause only if his restitution
obligations imposed under the VWPA qualify as criminal punishment. The nature of MVRA restitution is
irrelevant. For example, if the MVRA had retroactively extended the Lanham Act’s statute of limitations, the assertedly punitive character of MVRA
restitution would not transform a Lanham Act claim
into criminal punishment. In short, although application of the MVRA’s liability cutoff tees up the Ex Post
Facto Clause question in this case, answering that
question requires assessing the nature of restitution
under the VWPA—not the MVRA.
The same analysis applies to the MVRA’s interest
requirement. The punitive or compensatory character
of an interest payment necessarily turns on the character of the underlying obligation, as the Eighth
18
Circuit indicated. Pet.App.7a n.2; cf. Kansas v. Colorado, 533 U.S. 1, 10 (2001) (“[A] monetary award does
not fully compensate for an injury unless it includes
an interest component.”). Here, moreover, petitioner
has not argued that an interest requirement applicable to both civil and criminal financial obligations
would be classified as criminal punishment even in
the civil applications. Indeed, petitioner has not substantively addressed the interest provision in his merits brief, and he failed to raise it in the district court.
Second, the parties may argue that because the
MVRA amended the provision conferring authority on
district courts to impose restitution under the VWPA,
18 U.S.C. § 3556, and made certain, largely technical
changes to the VWPA’s preexisting discretionary regime, restitution under the VWPA is now entirely subsumed within the MVRA and so falls within the
question presented. The short and conclusive answer
to that argument is that petitioner conceded his order
was entered under the pre-MVRA version of the
VWPA, so those amendments could not possibly be
relevant. See pp. 14-15, supra.
But even if petitioner had been subject to the
amended version of the VWPA, that would not matter.
The question presented asks about a specific law
passed by a specific Congress—in a legal context in
which congressional intent is an overriding consideration—and petitioner is bound by that question.
S. Ct. R. 14.1(a); Yee v. City of Escondido, 503 U.S.
519, 535 (1992). Petitioner does not claim that the
sentencing court applied any of the changes that the
MVRA made to the VWPA in imposing his restitution
award.
And the amendment to the authorityconferring provision merely added a reference to
19
Section 3663A, see § 202, 110 Stat. 1227, leaving the
preexisting reference to Section 3663 materially unchanged.
At any rate, assuming the question presented
could, as a semantic matter, encompass the issue of
whether VWPA restitution is criminal punishment,
petitioner has forfeited that argument. In the court of
appeals, despite recognizing that his restitution order
was issued under the pre-MVRA version of the VWPA,
petitioner relied primarily on precedents concerning
the MVRA and Section 3663A. E.g., Pet. C.A. Op. Br.
17-30; see id. at 17 (“A. The MVRA Is a Penal Statute.”). Then, in seeking this Court’s review, petitioner
pointed to a circuit conflict over the character of
MVRA restitution. Pet. 8. Petitioner’s merits brief
focuses on the MVRA’s mandatory-restitution scheme
and its drug-offense amendment to the VWPA, discussing the intent behind the VWPA only briefly on
the ground that it was “the MVRA’s progenitor.” Br.
28. Petitioner thus has not remotely preserved an argument about the nature of VWPA restitution.
Even putting all that aside, at best this case would
implicate the question of whether VWPA restitution
is criminal punishment and would afford no basis to
opine on the nature of MVRA restitution. But there is
no circuit conflict on VWPA restitution. See U.S. Br.
22-23. A question about the nature of VWPA restitution therefore does not warrant this Court’s review—
especially in a case where it has not been adequately
briefed or decided below and where petitioner is unlikely to obtain ultimate relief no matter how the
Court resolves the question, see U.S. Br. 29-31.
*
*
*
20
When this Court has been “unwittingly * * *
placed in the unfortunate posture of addressing a situation that does not exist,” it has not hesitated to dismiss a petition as improvidently granted. Conway v.
Cal. Adult Auth., 396 U.S. 107, 110 (1969). The Court
should follow that course here.
II. RESTITUTION UNDER THE MVRA IS NOT
CRIMINAL PUNISHMENT
To assess whether a law imposes criminal punishment for purposes the Ex Post Facto Clause and certain other constitutional provisions, this Court applies
the two-step Mendoza-Martinez framework. Smith v.
Doe, 538 U.S. 84, 92-97 (2003). First, the Court asks
whether Congress “conclusively” intended to impose
criminal punishment. Mendoza-Martinez, 372 U.S. at
169. If not, the Court evaluates whether the remedy
at issue is “so punitive in form and effect as to render
[it] criminal.” Ursery, 518 U.S. at 290. Under that
framework, MVRA restitution is not a species of criminal punishment.
A. Congress Did Not Clearly Intend For The
MVRA To Impose Criminal Punishment
1. This Court’s Precedent
Conclusive Evidence Of
Intent
Requires
Punitive
Step one of the Mendoza-Martinez test asks
whether there is “conclusive evidence of congressional
intent as to the penal nature of a statute.” 372 U.S.
at 169 (emphasis added). The Court looks for “unmistakable penal intent” and “overwhelming indications
of punitive purpose.” Id. at 170 n.30. To “end[] the
inquiry” at step one, Smith, 538 U.S. at 92, the Court
21
must find that “the objective manifestations of congressional purpose indicate conclusively that the provisions in question can only be interpreted as
punitive,” Mendoza-Martinez, 372 U.S. at 169 (emphasis added).
That clear-statement requirement is grounded in
the separation of powers. When a challenger has
raised a substantial argument that a law, if deemed
criminal punishment, would violate the Constitution,
attributing punitive intent to Congress is tantamount
to finding that Congress intended to test constitutional limits. But this Court ordinarily strives to do
just the opposite: When “serious doubt is raised about
the constitutionality of an Act of Congress,” it looks
for a “plausible” interpretation to “avoid[]” the question. Jennings v. Rodriguez, 583 U.S. 281, 296 (2018)
(quotation omitted). Only when Congress has provided a “clear statement,” Bond v. United States, 572
U.S. 844, 860 (2014), or “clear indication” of its intent,
Zadvydas v. Davis, 533 U.S. 678, 697 (2001), will this
Court embrace an interpretation that could invalidate
a statute.
There is particularly good reason to apply that cautious approach in the legal context here, where a law’s
constitutionality depends on Congress’s intent, independent of the law’s practical operation or effect. This
Court, after all, will ordinarily construe a federal statute to apply more narrowly than its text indicates (assuming such a construction is plausible) to avoid a
serious constitutional question—for example, construing the honest-services-fraud statute as limited to
bribes and kickbacks to avoid due-process concerns.
Skilling v. United States, 561 U.S. 358, 404-09 (2010).
It follows that when the Court can avoid the
22
constitutional issue merely by attributing a particular
intent to Congress, without affecting the law’s scope,
it should do so absent an exceptionally clear statement that Congress intended to impose criminal punishment.
That approach accords with this Court’s
longstanding precedent. For instance, in Murphy v.
United States, 272 U.S. 630 (1926), the defendants
raised a double-jeopardy challenge that turned on
whether Congress intended a statutorily authorized
injunction to be criminal punishment. Id. at 631-32.
In rejecting that characterization of the law for a
unanimous Court, Justice Holmes cited “the unreasonableness of interpreting [the statute] as intended
to accomplish a plainly unconstitutional result.” Id.
at 632.
Similarly, in Flemming v. Nestor, 363 U.S. 603
(1960), the Court rejected the claim that terminating
welfare benefits amounted to criminal punishment in
violation of the Sixth Amendment and the Ex Post
Facto Clause, explaining that “the presumption of
constitutionality * * * forbids us lightly to choose that
reading of the statute’s setting which will invalidate
it over that which will save it.” Id. at 617. The challenged law contained no “unmistakable evidence of
punitive intent which * * * is required before a Congressional enactment of this kind may be struck
down.” Id. at 619.
To be sure, this Court has sometimes characterized the step-one inquiry as whether the legislature
“indicated either expressly or impliedly a preference
for one label or the other.” Smith, 538 U.S. at 93. But
the possibility of finding implied intent does not
23
conflict with Mendoza-Martinez’s clear-statement requirement. Rather, as the Court has held in the sovereign-immunity context, a clear statement need not
contain “magic words,” Dep’t of Agric. Rural Dev. Rural Hous. Serv. v. Kirtz, 601 U.S. 42, 48 (2024) (quotation omitted), or be phrased “in any particular way,”
FAA v. Cooper, 566 U.S. 284, 291 (2012). The standard “is simply whether, upon applying traditional
tools of statutory interpretation, Congress’s” intent “is
clearly discernable from the statute itself.” Lac du
Flambeau Band of Lake Superior Chippewa Indians
v. Coughlin, 599 U.S. 382, 388 (2023) (quotation omitted).
2. Congress Did Not Clearly Intend MVRA
Restitution To Function As Criminal
Punishment
Congress did not clearly intend for MVRA restitution to be criminal punishment. To the contrary, Congress designed the MVRA to serve “civil and remedial”
ends, United States v. One Assortment of 89 Firearms,
465 U.S. 354, 362 (1984), by compensating crime victims, see Dolan, 560 U.S. at 612.
Text. The most obvious indicator of a legislature’s
intent is the label that it attaches to a particular imposition. See, e.g., Hudson v. United States, 522 U.S.
93, 103 (1997); Kansas v. Hendricks, 521 U.S. 346, 361
(1997); Ursery, 518 U.S. at 288; Hicks ex rel. Feiock v.
Feiock, 485 U.S. 624, 637-38 (1988); Allen v. Illinois,
478 U.S. 364, 368 (1986). The MVRA does not use the
term “criminal restitution” or otherwise state that an
award of restitution is a criminal sanction. In contrast, Congress did use the label “criminal” for
24
another post-conviction remedy that is not inherently
punitive—forfeiture. See 18 U.S.C. §§ 982, 3554.
The term “restitution” itself, moreover, reflects the
statute’s compensatory purpose. Although “restitution” originally connoted “the return or restoration of
some specific thing or condition * * * 20th-century usage has extended the sense of the word to include * * *
compensation, reimbursement, indemnification, or
reparation for benefits derived from—or loss caused
to—another.” Bryan A. Garner, A DICTIONARY OF
MODERN LEGAL USAGE 765 (2d ed. 1995); see also
BLACK’S LAW DICTIONARY (12th ed. 2024) (4th def.:
“[c]ompensation for loss” in criminal proceedings); O XFORD ENGLISH DICTIONARY (3d ed. 2010 rev.) (1.a def.:
“making reparation to a person for loss or injury previously inflicted”). Consistent with that compensatory meaning, this Court has explained that when the
“chief purpose of [a] statute[]” is to “provide for restitution,” the statute is not “criminal” but “remedial and
impose[s] a civil sanction.” United States ex rel. Marcus v. Hess, 317 U.S. 537, 549, 551-52 (1943). And the
MVRA’s central statutory requirement to “make restitution to the victim” underscores that “restitution”
is used in its compensatory sense, not to connote some
freestanding form of punishment.
18 U.S.C.
§ 3663A(a)(1).
The parties cite Congress’s implicit description of
restitution as a type of “penalty.” Pet. Br. 25; U.S. Br.
24. But this Court has held that “both criminal and
civil sanctions may be labeled ‘penalties.’” Smith, 538
U.S. at 95 (quoting 89 Firearms, 465 U.S. at 364-65 &
n.6); see Padilla v. Kentucky, 559 U.S. 356, 365 (2010)
(explaining that removal is a “severe penalty” but not
a “criminal sanction” (quotation omitted)).
25
When Congress intends to refer to a penalty that
is criminal in nature, it often calls it a “criminal penalty”—as it has done well over 200 times in the U.S.
Code and numerous times in Title 18 alone. See, e.g.,
18 U.S.C. §§ 175c(c), 229A(a), 670(c), 1350(c),
1716E(e), 2332g(c), 2332h(c), 3600A(f). And Congress
has used the unmodified term “penalty” to refer to
civil exactions throughout the U.S. Code. E.g., 12
U.S.C. § 86; 26 U.S.C. § 6707A; 47 U.S.C. § 205. That
the term “penalty” is often used in connection with
criminal penalties in Title 18 (Pet. Br. 26) is little surprise given the subject matter of that title. Even
there, however, that usage is not universal, as petitioner admits. See, e.g., 18 U.S.C. § 218 (“penalty
* * * in a contract”).
The government notes (Br. 18) that another provision of Title 18 refers to MVRA restitution as a “sanction.” 18 U.S.C. § 3551. But as with “penalty,” this
Court has long held that “sanctions may * * * be either criminal or civil.” Helvering v. Mitchell, 303 U.S.
391, 399 (1938); see, e.g., Hudson, 522 U.S. at 103.
And the cited provision actually confirms that the restitution is different from criminal punishment, because it describes restitution as a “sanction” but
imprisonment or a fine as a “sentence.”
Petitioner points (Br. 31) to a 2010 amendment to
the Internal Revenue Code that includes the term
“criminal restitution” in its title and three of its section headings and that cross-references the provision
giving courts authority to impose MVRA restitution,
18 U.S.C. § 3556. Firearm Excise Tax Improvement
Act of 2010, Pub. L. No. 111-237, § 3, 124 Stat. 2497.
But petitioner overlooks the Internal Revenue Code’s
rules of construction, which state that no “descriptive
26
matter relating to the contents of this title [shall] be
given any legal effect.” 26 U.S.C. § 7806(b); Moxon
Corp. v. Comm’r, 2025 WL 1825507, at *5 n.6 (T.C.
July 2, 2025) (applying provision to headings). At any
rate, a different Congress’s use of “criminal restitution” as shorthand in the non-operative text of a tax
provision enacted 14 years after the MVRA is not conclusive evidence of congressional intent in enacting
the MVRA.
Structure. The structure of the MVRA’s mandatory-restitution scheme confirms that its principal
aim is to “reimburse” victims for “the loss resulting
from” the defendant’s offense—a purpose this Court
has long deemed non-punitive. Helvering, 303 U.S. at
401.
Restitution under Section 3663A is generally mandatory, depriving courts of the case-specific discretion
ordinarily involved in criminal sentencing. When Section 3663A applies, a court must award full restitution—and no more—for the types of victim loss
identified in the statute. 18 U.S.C. § 3663A(a) and (b).
The court is not permitted to consider the defendant’s
culpability or economic circumstances, the nature of
the offense, or basic penological goals like deterrence
and just punishment. Id. § 3664(f)(1)(A). The court’s
only job is to accurately calculate what the victims
lost.
Unlike criminal fines, MVRA restitution goes directly to the victim in most cases, and it is never paid
to the federal government as the prosecuting sovereign. See 18 U.S.C. § 3663A(a). When the United
States is also a victim, other victims get paid first. Id.
§ 3664(i). Victims can obtain a civil lien on the
27
property of the defendant for the restitution amount.
Id. § 3664(m)(1)(B). If, after a restitution order is imposed, a victim discovers “further losses,” the victim
can petition the court for an amended order, id.
§ 3664(d)(5), with “no time limit on the victim’s subsequent discovery of losses,” Dolan, 560 U.S. at 613. At
the same time, if a victim later obtains compensation
for the same loss through a civil judgment, the court
must reduce the restitution order by that amount. 18
U.S.C. § 3664(j)(2).
Ignoring or discounting those victim-centric features of the MVRA, the parties emphasize that victims do not play as much of a role in MVRA restitution
proceedings as they would as tort plaintiffs. Pet. Br.
33-34; U.S. Br. 28-29. But that does not suggest a punitive purpose. Regardless of the procedures, restitution under Section 3663A is overwhelmingly focused
on compensating victim loss, not inflicting punishment on offenders.
At any rate, victims play a much larger role than
the parties suggest. At the outset, the “attorney for
the Government” must “consult[], to the extent practicable, with all identified victims.”
18 U.S.C.
§ 3664(d)(1). The probation officer must give a detailed notice to each victim and provide an opportunity to submit information about losses.
Id.
§ 3664(d)(2). If victims “subsequently discover[] further losses,” they may petition the court for an
amended order. Id. § 3664(d)(5). And in practice, victims often actively participate in the proceedings. See,
e.g., United States v. Rivera-Solís, 733 F. Supp. 3d 46,
51-57 (D.P.R. 2024).
28
That system is supremely victim-centric—Sections
3663A and 3664 use the word “victim” 70 times—even
if victims are not the first movers. Few victims would
prefer to initiate civil litigation on their own to obtain
compensation for medical expenses and property damage from the criminals who harmed them. And contrary to petitioner’s suggestion (Br. 34), the fact that
victims are not required to participate in the process
yet can still receive compensation, 18 U.S.C.
§ 3664(g)(1), is a benefit to victims, not a drawback,
and does not diminish MVRA restitution’s fundamentally compensatory character.
Petitioner argues (Br. 33) that victims have no control over whether a defendant pleads to a non-MVRA
offense. But the same would be true for a civil cause
of action, where victims would have to prove the injurious conduct in the absence of a pertinent criminal
conviction. And the option for victims to donate restitution to the Crime Victims Fund if they do not want
it, 18 U.S.C. 3664(g)(2) (see Pet. Br. 33), does not detract from the scheme’s compensatory focus. Unwanted compensation is still compensation.
Petitioner also points (Br. 34) to the one type of
MVRA restitution that does not go directly to victims—restitution for certain drug offenses under the
MVRA’s amendment to the VWPA, 18 U.S.C.
§ 3663(c). But even that provision reflects an intent
to compensate, not punish. Recognizing that drug
crimes are not “victimless” but often injure victims
who are hard to identify, see Harmelin v. Michigan,
501 U.S. 957, 1002 (1991) (Kennedy, J., concurring in
part and concurring in the judgment), the provision
gives a district court discretion to impose an award
“based on the amount of public harm caused by the
29
offense” and earmarks the payments for victim-assistance and substance-abuse prevention programs. 18
U.S.C. § 3663(c)(2)(A) and (3). That reflects the same
nonpunitive intent as the MVRA’s other provisions.
And even if it did not, deeming restitution under that
amendment to the discretionary regime of Section
3663 to be criminal punishment would not mean that
Section 3663A’s mandatory system of restitution to
identifiable victims is also punitive.
The government emphasizes (Br. 29) that courts
can withhold MVRA restitution for certain nonviolent offenses if calculating the loss would be impracticable given the number of victims or too burdensome on the sentencing process.
18 U.S.C.
§ 3663A(c)(3)(B). Congress’s recognition that computing a restitution award sometimes is not worth the
candle, however, does not convert restitution into
criminal punishment.
The government points (U.S. Br. 27-28) to other
features of the statutory scheme, but they are irrelevant. For example, the government cites a provision
allowing a defendant to agree to pay restitution to
someone other than a “victim”—e.g., a person impacted by the offense but not “directly and proximately harmed.” 18 U.S.C. § 3663A(a)(2) and (3). But
a payment obligation voluntarily assumed does not fit
any definition of “punishment.” And although “nominal” payment is allowed when the defendant cannot
pay “any amount of a restitution order,” 18 U.S.C.
§ 3664(f)(3)(B) (see U.S. Br. 28), that leaves victims no
worse off than if they had obtained an ordinary civil
judgment against a judgment-proof individual. As
further protection, moreover, victims must be notified
30
when the defendant’s ability to pay changes.
U.S.C.§ 3664(k).
18
In short, the primary purpose of the MVRA’s
mandatory-restitution regime is to provide an efficient way for crime victims to obtain compensation for
loss, without respect to whether a restitution award
constitutes a just punishment, promotes deterrence,
or advances other goals of the criminal-justice system.
Constitutional Avoidance. In two respects specific to the MVRA, the canon of constitutional avoidance counsels against construing the statute as
punitive.
First, Congress provided that the MVRA would apply to offenses committed before its enactment. § 211,
110 Stat. 1241. It is unlikely Congress would have
done so if it considered MVRA restitution criminal
punishment subject to the Ex Post Facto Clause. Petitioner draws (Br. 24-25) a different inference from
the retroactivity provision: that because Congress was
cognizant of a potential constitutional objection, it intended to violate the Constitution by enacting a retroactive punitive measure.
That is not how
constitutional avoidance works. The section’s proviso—“to the extent constitutionally permissible”—
presumably accounted for the possibility that a court
would deem MVRA restitution to be criminal punishment at Mendoza-Martinez step two.
Second, under the Apprendi line of cases, the
“Sixth Amendment reserves to juries the determination of any fact, other than the fact of a prior conviction, that increases a criminal defendant’s maximum
potential sentence.” S. Union Co. v. United States,
567 U.S. 343, 346 (2012). The Court has applied that
31
rule “to criminal fines,” and thus juries must “find beyond a reasonable doubt facts that determine [a] fine’s
maximum amount.” Id. at 346, 350. If MVRA restitution were also deemed criminal punishment, the
same rule would presumably apply. And because the
MVRA requires judges to find by a preponderance of
the evidence facts that increase the maximum amount
of restitution, 18 U.S.C. § 3664(e), MVRA restitution
would violate the Sixth Amendment were it criminal
punishment—a serious problem with the government’s position in this case that it brushes off in a footnote (Br. 26 & 27 n.3). See Hester v. United States,
586 U.S. 1104, 1105-07 (2019) (Gorsuch, J., dissenting
from the denial of certiorari).
To be sure, even if MVRA restitution is not criminal punishment, it may implicate the Seventh Amendment right to a civil jury trial. But that would depend
on the novel question of whether a restitution proceeding during criminal sentencing is a “Suit[] at common
law,” U.S. Const. amend. VII, and at least certain categories of MVRA restitution may qualify as equitable
remedies not subject to the Seventh Amendment, e.g.,
18 U.S.C. § 3663A(b)(1). See City of Monterey v. Del
Monte Dunes at Monterey, Ltd., 526 U.S. 687, 708-09
(1999). By contrast, construing restitution to be criminal punishment would clearly threaten to invalidate
the entire scheme under the Sixth Amendment.
Precedent. In Dolan, supra, this Court’s only sustained analysis of the purposes of the MVRA, the
question was whether a court’s violation of the statute’s 90-day deadline for a “final determination of the
victim’s losses,” 18 U.S.C. § 3664(d)(5), foreclosed a
restitution order. 560 U.S. at 607-08. In holding that
it did not, the Court relied on the MVRA’s
32
“substantive purpose, namely, that the statute seeks
primarily to ensure that victims of a crime receive full
restitution.” Id. at 612; see id. at 613. To “deny[] the
victim restitution in order to remedy a missed hearing
deadline,” the Court held, “would defeat the basic purpose of the [MVRA].” Id. at 615. Even the dissent
agreed that compensating crime victims “was a purpose Congress sought to promote” but merely concluded that the purpose was limited by the 90-day
deadline. Id. at 625 (Roberts, C.J., dissenting).
Under Dolan’s interpretation of the statute, MVRA
restitution is not clearly criminal punishment because
its primary purpose is to compensate victims. As this
Court explained in holding that a forfeiture provision
was not criminal punishment, where a provision’s
purpose is “plainly more remedial than punitive,” it is
likely that Congress intended the provision to be “a
remedial civil sanction rather than a criminal punishment.” 89 Firearms, 466 U.S. at 364.
The parties rely heavily on this Court’s decisions
in Paroline, supra, and Pasquantino v. United States,
544 U.S. 349 (2005), but that reliance is misplaced.
In Paroline, the Court considered the standard of
causation under a different mandatory-restitution
statute governing child-pornography offenses, 18
U.S.C. § 2259. 572 U.S. at 439. The Court explained,
consistent with Dolan, that the “primary goal of restitution is remedial or compensatory.” Id. at 456; see
also id. at 481 (Sotomayor, J., dissenting) (“Section
2259 functions as a tort statute ….”). But the Court
declined to import certain tort-law legal fictions into
Section 2259 because “restitution serves purposes
that differ from (though they overlap with) the
33
purposes of tort law.” Id. at 453 (majority op.). In
particular, the Court believed that Section 2259
“serve[s] the twin goals of helping the victim achieve
eventual restitution for all her child-pornography
losses”—i.e., compensation—“and impressing upon offenders the fact that child-pornography crimes, even
simple possession, affect real victims.” Id. at 459.
It is doubtful that the MVRA, which for the most
part applies to crimes with obvious victims, shares the
latter goal with Section 2259. But even if it did, the
fact that a compensation scheme also “impress[es]
upon offenders that their conduct produces concrete
and devasting harms for real, identifiable victims,”
Paroline, 572 U.S. at 457, would not conclusively establish that Congress intended it to function as criminal punishment. Any form of civil monetary liability
would do the same.
Pasquantino held that prosecuting defendants under the federal wire-fraud statute for a scheme to deprive Canada of tax revenue did not transgress the
common-law prohibition on enforcing a foreign tax
law. 544 U.S. at 352-53. In its analysis, the Court
rejected the argument that mandatory restitution under the MVRA would amount to collecting the Canadian tax. Id. at 365. The Court explained that the
“purpose of awarding restitution in this action is not
to collect a foreign tax, but to mete out appropriate
criminal punishment” for “fraudulent domestic criminal conduct.” Ibid. Read in context, the reference to
“criminal punishment” simply conveyed that foreign
tax assessment is not among the MVRA’s animating
purposes—purposes that Dolan has since clarified to
be primarily compensatory. The characterization was
dicta in any event because the Court went on to hold
34
that the nature of MVRA restitution was irrelevant to
its holding. See id. at 365.
Petitioner also relies (Br. 23, 27) on the pre-MVRA
decision in Kelly v. Robinson, 479 U.S. 36 (1986),
which held that a state-law restitution obligation was
not dischargeable in bankruptcy. Kelly, however, concerned a discretionary Connecticut statute that was
far less victim-oriented than the MVRA. That statute
did “not require imposition of restitution in the
amount of the harm caused” but instead “provide[d]
for a flexible remedy tailored to the defendant’s situation.” Id. at 53. The Court therefore concluded that
the restitution awards were “not assessed for . . . compensation of the victim” and instead advanced “the penal and rehabilitative interests of the State.” Ibid.
(quotation omitted).
Congress rejected precisely that approach in the
MVRA, making restitution in the amount of the victim’s loss mandatory in most cases. And although
Kelly briefly cited circuit decisions construing VWPA
restitution as punishment, 479 U.S. at 53 n.14, the
discretionary and flexible VWPA regime differs materially from the MVRA. See pp. 4-8, 16, supra.
Legislative Record. The MVRA’s legislative record confirms that the statute’s purpose is to compensate victims. See Dolan, 560 U.S. at 613 (citing S. Rep.
No. 104-179, at 20 (1995)). Academic reviews of the
record have concluded that the “few assertions” of penological benefits are “vastly outnumbered by assertions of the MVRA’s remedial civil benefits.” Matthew
Spohn, Note, A Statutory Chameleon: The Mandatory
Victim Restitution Act’s Challenge to the Civil/Criminal Divide, 86 IOWA L. REV. 1013, 1031-36 (2001)
35
(collecting materials); see Comment, Heidi M. Grogan,
Characterizing Criminal Restitution Pursuant to the
Mandatory Victims Restitution Act: Focus on the
Third Circuit, 78 TEMP. L. REV. 1079, 1101 (2005)
(“Congress’s discussion focused, almost exclusively, on
redressing victim’s harms.”).
Reports from both houses of Congress reflected the
intent to compensate, not punish. The Senate report
stated that the MVRA was needed “to ensure that the
loss to crime victims is recognized, and that they receive the restitution that they are due.” S. Rep. No.
104-179, at 12. The House report, citing startling statistics on uncompensated financial losses and hospitalizations, explained that the MVRA would address
the failure of existing law to make “victims whole.”
H.R. Rep. No. 104-16, at 4 (1995). The purpose of the
statute was to “provide those who suffer the consequences of crime with some means of recouping the
personal and financial losses resulting from crime.”
Id. at 5.
Individual Members expressed similar views. Representative Hyde, then Chair of the Judiciary Committee, asked his colleagues to think “of the victims
and think of the victims first.” 142 Cong. Rec. H3606
(daily ed. Apr. 18, 1996). Senator Grassley expressed
his concern that “crime victims actually receive the
restitution they are entitled to.” 141 Cong. Rec.
S16827 (daily ed. Nov. 8, 1995). And Senator Feinstein asserted that if “somebody has been hurt by a
criminal, they should be made whole.” 141 Cong. Rec.
S19280 (daily ed. Dec. 22, 1995).
Even for jurists skeptical that reports and floor
statements shed light on the intent of a multi-member
36
body, these materials at least show that any possible
punitive intent was far from universal. The parties’
handful of quotations from the legislative record (Pet.
Br. 29; U.S. Br. 21) largely just acknowledge that
MVRA restitution would be imposed during sentencing or speculate about “potential pen[o]logical benefits” that might accompany “the benefits that even
nominal restitution payments have for the victim of
crime.” S. Rep. No. 104-179, at 18.
3. Congress May Reasonably Integrate A
Civil Remedy Into Criminal Sentencing
Much of what the parties present as several different features of the MVRA demonstrating a punitive
purpose are really just one feature: Congress chose to
integrate victim compensation into the sentencing
process. That is why restitution is imposed only after
a criminal conviction; why the MVRA is codified in Title 18 and amended the Sentencing Guidelines and
Federal Rules of Criminal Procedure; why the statute
distinguishes the restitution process from a “civil proceeding”; why the sentencing judge issues the award;
and why prosecutors and probation officers play important roles. See Pet. Br. 15-20, 24-25, 31-33; U.S.
Br. 16-21, 27.
But that feature alone is not enough to establish
that Congress intended restitution to operate as criminal punishment. In Smith, supra, the Alaskan statutory scheme at issue required that defendants be
notified of sex-offender-registration requirements
during their criminal prosecutions, but that did not
convert the registration scheme into punishment. 538
U.S. at 95-96. The Court explained that such
“[t]imely” notice was “effective” at “appris[ing]
37
individuals of their responsibilities” and “ensur[ing]
compliance with the regulatory scheme.” Id. at 96.
That provided a reasonable basis for its integration
into criminal proceedings that had nothing to do with
punishment. As the Court put it, merely invoking
“the criminal process * * * does not render the statutory scheme itself punitive.” Ibid.
Following Smith, courts of appeals have held that
federal sex-registration requirements—imposed as a
condition of supervised release at sentencing—are not
punishment. See, e.g., United States v. W.B.H., 664
F.3d 848, 852-60 (11th Cir. 2011), cert. denied, 568
U.S. 978 (2012). They have reached the same conclusion as to other supervised-released conditions. See,
e.g., United States v. Jackson, 189 F.3d 820, 822-24
(9th Cir. 1999) (drug testing); United States v. Coccia,
598 F.3d 293, 296-99 (6th Cir. 2010) (DNA testing);
United States v. Winston, 850 F.3d 377, 381-82 (8th
Cir. 2017) (searches). That Congress incorporated an
otherwise non-punitive obligation into the sentencing
process thus does not demonstrate that Congress intended to impose criminal punishment.
Here, whether or not other practicable “methods”
of securing compensation for crime victims were
“available” to Congress, it is uniquely “effective” to
simultaneously impose criminal penalties and restitution obligations since they both arise out of the same
conviction. Smith, 538 U.S. at 96. Congress could in
theory have provided for a “separate, noncriminal proceeding” (Pet. Br. 15), forcing injured or defrauded victims to hire attorneys to file lawsuits where they could
invoke the collateral-estoppel effect of criminal judgments, 18 U.S.C. § 3664(l). But its choice to streamline procedures for the benefit of victims does not
38
mean that Congress clearly intended an overtly compensatory system to be punitive.
In a similar vein, petitioner relies heavily (Br. 1517, 32-33) on the argument that Congress must have
intended MVRA restitution to be punishment because
it is a consequence of a criminal conviction. But this
Court has long held that “[t]he mere fact that [an obligation] is imposed in consequence of a crime is not
conclusive.” Murphy, 272 U.S. at 632. Indeed, at
Mendoza-Martinez step two, this Court has given that
consideration “little weight” where the existence of a
criminal conviction is necessary to serve a nonpunitive purpose (e.g., crime-victim compensation), Smith,
538 U.S. at 105, so it would be incongruous if that feature of the MVRA could drive the step-one analysis.
Under current law, moreover, a range of civil consequences follows from a criminal conviction, such as
the loss of voting and firearm rights and changes to
immigration status, so there is nothing anomalous
about linking civil compensation to a criminal judgment. Padilla, 559 U.S. at 376 (Alito, J., concurring);
Hopkins v. Watson, 108 F.4th 371, 382-89 (5th Cir.
2024) (en banc), cert. denied, 145 S. Ct. 1138 (2025)
(voting); Hinds v. Lynch, 790 F.3d 259, 263-68 (1st
Cir. 2015) (removal); United States v. O’Neal, 180 F.3d
115, 125 (4th Cir. 1999), cert. denied, 528 U.S. 980
(1999) (firearms).
The parties note (Pet. Br. 11; U.S. Br. 17-18) the
MVRA’s placement in Title 18. But this Court has “rejected the argument that the placement [of a provision
in the Criminal Code] demonstrated Congress’ ‘intention to create an additional criminal sanction,’”
Smith, 538 U.S. at 94-95 (quoting 89 Firearms, 465
39
U.S. at 364 n.6), and Title 18 contains civil causes of
action, e.g., 18 U.S.C. §§ 2333(a), 2707(a).
Moreover, the specific placement of the MVRA cuts
against the view that it is criminal punishment. Section 3663A is not housed in the “Sentences” chapter of
Title 18 (Chapter 227), which addresses imprisonment, fines, and probation, but rather in a chapter entitled
“Miscellaneous
Sentencing
Provisions”
(Chapter 232). That chapter addresses a variety of
matters that are not criminal punishments, such as
the storage of records of criminal proceedings, 18
U.S.C. § 3662; the disposal of firearms found on certain arrestees, id. § 3665; the proper disposition of
bribe money, id. § 3666; and the duties of the Director
of the Administrative Office of the U.S. Courts, id.
§ 3672.
Finally, petitioner also points out that an offender’s failure to make good on restitution obligations can sometimes authorize a district court to
revoke probation or supervised release or to increase
the offender’s sentence for the crime of conviction, including where doing so would advance “the purposes
of punishment and deterrence.” Pet. Br. 20-22 (quoting 18 U.S.C. § 3614(b)). That does not show that
Congress intended the restitution obligation itself to
be punitive. There is nothing inconsistent about classifying restitution as a civil remedy while providing
that a defendant’s failure to make good to victims
when ordered to do so may warrant an increased period of confinement for the offense of conviction. That
behavior is new information bearing on an offender’s
acceptance of responsibility and reintegration into society and the harm caused by the offense.
40
But even if an additional period of imprisonment
were understood to be punishment for the failure to
pay restitution, rather than for the underlying crime,
that would not mean that Congress intended the restitution obligation itself to be a form of punishment.
Petitioner’s argument is akin to saying that because
failing to pay taxes or violating an injunction can lead
to imprisonment, taxes and injunctions are forms of
criminal punishment.
4. The Parties’ Other Arguments Are Not
Relevant To Congressional Intent
The parties raise a number of step-one arguments
that are not relevant to the question of Congress’s intent in 1996 in enacting the MVRA.
First, the parties invoke provisions of the pre-1996
VWPA, judicial decisions construing that statute, and
its legislative history. Pet. Br. 27-29; U.S. Br. 22-23.
But the original VWPA’s discretionary regime differed
materially from the MVRA, allowing judges to take
account of ordinary penological objectives in deciding
whether to impose restitution and in what amount.
See pp. 4-8, 16, supra. That statute does not illuminate Congress’s intent in enacting a very different
mandatory regime.
Second, both parties emphasize the post-enactment view of the Department of Justice. Pet. Br. 30;
U.S. Br. 23 n.2. That has no bearing on congressional
intent.
Third, petitioner presents (Br. 34-36) a historical
analysis stretching back to ancient civilizations and
medieval Europe. The historical understanding of victim compensation is relevant at step two of the
41
Mendoza-Martinez framework, see pp. 45-48, infra,
but not at step one. See Pet. Br. 17, 20-23 (discussing
other step-two considerations at step one). While Congress may be expected to legislate against the backdrop of an on-point decision of this Court or settled
legal principles, see Jackson v. Birmingham Bd. of
Educ., 544 U.S. 167, 176 (2005) (cited Pet. Br. 27),
there is no reason to think that the Members who
voted for the MVRA were thumbing through dogeared copies of Hammurabi or Samuel Johnson.
*
*
*
The parties have not identified “conclusive evidence of congressional intent as to the penal nature”
of the MVRA. Mendoza-Martinez, 372 U.S. at 169.
Accordingly, whether restitution under the MVRA is
criminal punishment depends on its form and effect at
step two of Mendoza-Martinez.
B. Restitution Imposed Under The MVRA Is
Not Punitive In Form Or Effect
At step two, the Court evaluates whether the imposition at issue is “so punitive in form and effect as
to render [it] criminal.” Ursery, 518 U.S. at 290. Several “helpful” factors guide that inquiry. United
States v. Ward, 448 U.S. 242, 249 (1980). The “factors
most relevant to” the analysis are whether the imposition:
1. “has a rational connection to a nonpunitive purpose”;
2. “is excessive with respect to this purpose”;
3. “has been regarded in our history and traditions as a punishment”;
42
4. “imposes an affirmative disability or restraint”;
or
5. “promotes the traditional aims of punishment.”
Smith, 538 U.S. at 97.
The Court also has identified two other factors that
often carry “little weight,” Smith, 538 U.S. at 105:
6. “whether [the imposition] comes into play only
on a finding of scienter,” and
7. “whether the behavior to which [the imposition]
applies is already a crime,”
Hudson, 522 U.S. at 99 (quotation omitted).
In considering those factors, this Court has typically sought the “clearest proof ” that the statute is punitive—including where the legislature has not
expressly labeled the remedy “civil.” See Hudson, 522
U.S. at 103-05. But even under a lower standard, the
factors demonstrate that the MVRA restitution is not
criminal punishment.
Nonpunitive purpose. A sanction’s “rational
connection to a nonpunitive purpose is a ‘[m]ost significant’” factor. Smith, 538 U.S. at 102 (quoting
Ursery, 518 U.S. at 290). For instance, in Ursery, the
Court determined that certain forfeiture proceedings
were not “so punitive in form and effect as to render
them criminal” in large part because they “serve[d]
important nonpunitive goals,” like “encourag[ing]
property owners to take care in managing their property.” 518 U.S. at 290. Similarly, this Court held that
the sex-offender registration scheme in Smith had “a
legitimate nonpunitive purpose of public safety,” 538
U.S. at 102-03 (quotation omitted), and a challenged
43
monetary penalty served “to promote the stability of
the banking industry,” Hudson, 522 U.S. at 105.
Here, the connection between MVRA restitution
and a nonpunitive purpose is more than merely rational; MVRA restitution’s primary focus is victim
compensation. See Dolan, 560 U.S. at 612; pp. 31-34,
supra. That counsels strongly in favor of deeming it
nonpunitive.
Petitioner reiterates (Br. 45-46) his argument that
victims play a small role in the MVRA process as compared to ordinary tort litigation and observes that restitution balances are often uncollectible. The first
point is overstated and does not in any event detract
from the compensatory nature of restitution. See pp.
24-36, supra. The latter would be true under any regime, civil or criminal, that seeks compensation from
frequently judgment-proof individuals.
Petitioner also adverts (Br. 46) to the drug-crimes
provision involving unidentifiable victims, 18 U.S.C.
§ 3663(c), but that provision expressly authorizes
compensation for “public harm” and devotes the
money collected to helping victims and those who
struggle with substance abuse. That reflects a prototypical nonpunitive purpose.
Proportionality. MVRA restitution is not “excessive with respect to” its nonpunitive purpose of victim
compensation. Smith, 538 U.S. at 97. This factor does
not ask “whether the legislature has made the best
choice possible to address the problem” but merely
“whether the regulatory means chosen are reasonable” given “the nonpunitive objective.” Id. at 105. Under that standard, the Court did not deem the
worldwide applicability and extensive duration of the
44
sex-offender reporting requirements in Smith to be excessive. Id. at 103-05.
Under the MVRA, courts cannot order restitution
exceeding the “victim’s losses,” 18 U.S.C.
§ 3664(f)(1)(A), unless the defendant agrees to make
restitution to other parties, id. § 3663A(a)(3), and restitution must be offset by any civil judgment the victim obtains, id. § 3664(j)(2). Courts of appeals have
thus widely recognized that the MVRA limits restitution to “the full amount” of victim losses and “nothing
more.” United States v. Newman, 144 F.3d 531, 542
(7th Cir. 1998); see, e.g., United States v. Borino, 123
F.4th 233, 247 (5th Cir. 2024). The statute therefore
imposes no more liability than what is necessary to
achieve its nonpunitive purpose. Petitioner does not
appear to disagree.
History and Tradition. In the Anglo-American
legal tradition, compensatory remedies have been almost universally understood to be nonpunitive. In
fact, this Court has observed that “the payment
of * * * money” as a “[r]emedial sanction[]” has been
“recognized” as civil since the Founding. Helvering,
303 U.S. at 399-401; accord Hudson, 522 U.S. at 104
(“[N]either money penalties nor debarment has historically been viewed as punishment.”).
“Under the Saxon legal system in pre-Norman
England, the victim of a wrong would, rather than
seek vengeance through retaliation or ‘blood-feud,’ accept financial compensation for the injury from the
wrongdoer.” Browning-Ferris Indus. of Vt., Inc. v.
Kelco Disposal, Inc., 492 U.S. 257, 287 (1989) (O’Connor, J., concurring in part and dissenting in part). As
the English legal system developed, compensation
45
was largely integrated into civil proceedings through
tort damages. Stephen Schafer, Restitution to Victims
of Crime—An Old Correctional Aim Modernized, 50
MINN. L. REV. 243, 246-47 & n.6 (1995). That tradition carried over to the American legal system, where
“tort law provided the principal, usually the sole,
source of compensation for injuries suffered.” John G.
Fleming, The Collateral Source Rule and Loss Allocation in Tort Law, 54 Calif. L. Rev. 1478, 1478 (1966).
Thus, the prominent legal reformer Edward Livingston (who also served as President Jackson’s Secretary of State) explained that the “distinction
between penal and civil laws” is that penal laws “exclude the idea of private compensation.” 1 T HE COMPLETE WORKS OF EDWARD LIVINGSTON ON CRIMINAL
JURISPRUDENCE 243 (1873). Indeed, the word “penal”
signified “all acts which impose by way of punishment
damages beyond compensation for the benefit of the injured party.” William M. Lile et al., Brief Making and
the Use of Law Books 344 (Roger W. Cooley & Charles
Lesley Ames eds., 3d ed. 1914) (quoted in BLACK’S LAW
DICTIONARY, supra (def. of “penal”)) (emphasis added).
Although some early criminal statutes provided for
forms of victim compensation, see pp. 47-48, infra,
amicus is aware of no prominent judicial opinions or
scholarly legal works from early American history
that characterized those remedies as a component of
criminal punishment.
Accordingly, the most that can be said of the historical understanding of restitution is that victims
usually obtained compensation through the tort system, and little attention was paid to the character of
restitution imposed during the criminal process. That
limited historical record does not support the view
46
that modern systems of victim restitution must be
classified as criminal punishment as a matter of constitutional law.
Petitioner offers a different interpretation of the
history (Br. 34-36, 41-42), but it is deeply flawed. Petitioner begins by misreading Justice James Wilson’s
observation that a “leading maxim in the doctrine of
punishments” is that in “the punishment of every
crime, reparation for the included injury ought to be
involved.” Pet. Br. 34 (quoting 2 COLLECTED WORKS
OF JAMES WILSON 1105 (Kermit L. Hall & Mark David
Hall eds., 2007)). Wilson was contrasting the present
state of affairs in English law, where restitution was
absent, with the “otherwise and better” rule of ancient
times, in which “part of the composition”—i.e., compensation—“was given to the relations of the person
deceased.” 2 WILSON, supra, at 1106. Moreover, Wilson observed that those older restitutionary remedies
“had the nature of a civil redress,” confirming that he
viewed them as inherently civil, not punitive. 2 WILSON, supra, at 1106 (emphasis added).
Petitioner next adverts (Br. 34-35) to legal systems
from civilizations that existed thousands of years ago.
Petitioner’s own source, however, explains that the
cited practices arose “before the conceptual separation
of civil and criminal law” and that the “primary purpose of such restitution was not to compensate the victim, but to protect the offender from violent
retaliation by the victim or the community.” Note,
Victim Restitution in the Criminal Process: A Procedural Analysis, 97 HARV. L. REV. 931, 933 (1984).
Such alien legal regimes have no more relevance to
the meaning of the U.S. Constitution than the justice
systems of Westeros or Middle-earth.
47
Petitioner points out (Br. 35) that in English and
American law, courts sometimes required defendants
convicted of larceny or other property offenses to return stolen property to the victims. But none of the
cited historical materials characterize that sort of
remedy as part of criminal punishment—the question
here. That history is equally consistent with the view
that a legislature may integrate a civil compensatory
remedy into the sentencing process without transforming it into punishment. See pp. 36-40, supra.
Further, the Founding-era statutes that petitioner
cites imposed punitive monetary awards on top of victim compensation. The 1802 statute prohibiting theft
in the Indian territories required payment of “a sum
equal to twice the just value of the property so taken
or destroyed.” An Act to Regulate Trade and Intercourse with the Indian Tribes, and to Preserve Peace
on the Frontiers, ch. 13, § 4, 2 Stat. 139, 141 (1802)
(emphasis added). And the 1790 statute prohibiting
theft on the high seas imposed a fine of up to “the fourfold value of the property,” with only half the fine paid
to the victim. An Act for the Punishment of Certain
Crimes Against the United States, ch. 9, § 16, 1 Stat.
112, 116 (1790) (emphasis added). Colonial laws employing restitution were “everywhere the same,” requiring larceny offenders to “make good what had
been stolen plus an additional amount as punitive
damages to the victim.” EDGAR J. MCMANUS, LAW AND
LIBERTY IN EARLY NEW ENGLAND 34 (1993) (emphasis
added). It would be no surprise if such extracompensatory monetary exactions were deemed punishment.
Finally, petitioner cites Caldwell v. State, 55 Ala.
133 (1876), as support for his historical claims. But
48
the statute at issue there required payment of
“costs * * * to the officers of court,” not restitution to
victims. Id. at 135. Petitioner relies on dicta in which
the court observed that under other provisions of the
state code, a “fine” paid to a “party injured” qualified
as “punishment.” Ibid. (citing sections 3733 and
3738). But as the opinion says, those provisions imposed fines, not compensation for losses. See Ala.
Code §§ 3733 ($20-$500 fine for malicious injury to animals); 3738 (fine goes to injured party when injury is
“to private property”) (1867). Caldwell is thus irrelevant.
Disability or Restraint. MVRA restitution involves no “affirmative disability or restraint.” Mendoza-Martinez, 372 U.S. at 168. Resisting that selfevident conclusion, petitioner claims (Br. 38) that the
Court must take account of the fact that failing to pay
restitution can result in resentencing or revocation of
probation or supervised release. See pp. 39-40, supra.
As noted, on that logic, a tax could be deemed penal
because a person’s failure to pay it might result in imprisonment. So could an ordinary civil injunction,
which courts may enforce through imprisonment. 18
U.S.C. § 401.
Citing Smith, petitioner claims that the analysis
must focus on the entire statutory “scheme,” including
penalties for failure to pay restitution. But that misreads Smith, which did not expand the well-established inquiry into whether “the sanction involves an
affirmative disability or restraint.” Mendoza-Martinez, 372 U.S. at 168 (emphasis added). Smith used
the phrase “statutory scheme” only because the sanction there was an entire regime of sex-offender registration and notification requirements.
49
Indeed, in Smith itself, the Court held that the registration requirements imposed no affirmative restraint even though, as here, failing to comply with
them could result in imprisonment. 538 U.S. at 90,
101-02. Petitioner dismisses that holding on the
ground that the Smith regime required the government to “initiate[] a new prosecution” (Pet. Br. 39)
(emphasis omitted), whereas failure to honor restitution obligations can result in reimprisonment for the
underlying conviction. But Smith’s point was that
conditions of probation or supervised release that curtail an offenders’ freedom “to move where they wish
and to live and work as other citizens,” upon threat of
revocation without a new prosecution, impose affirmative restraints. 538 U.S. at 101. A mere financial
obligation entails no such limitation on movement.
Petitioner suggests (Br. 40) that defendants who
cannot afford to pay restitution obligations are subject
to imprisonment. A defendant’s inability to pay, however, cannot be the basis for reincarceration, 18 U.S.C.
§ 3614(c), or revocation of supervised release or probation, Black v. Romano, 471 U.S. 606, 611 (1985). And
the MVRA requires courts to develop payment plans
that take into account defendants’ financial resources
and circumstances, id. § 3664(d)(3) and (f)(2)-(3).
Traditional aims of punishment. MVRA restitution does not advance the traditional aims of punishment more than any other civil monetary remedy.
Unlike other systems of restitution, e.g., Kelly, 479
U.S. at 49, the MVRA does not allow courts to take
into account deterrence, just punishment, or other penological goals. 18 U.S.C. § 3664(f)(1)(A). The sole
determinant of the restitution amount is the victim’s
loss. Ibid. And as noted, unlike with restitution for
50
child-pornography offenses, see Paroline, 572 U.S. at
453, it is hard to imagine that MVRA restitution is
necessary to educate offenders that acts of violence,
property destruction, and fraud have real victims.
To be sure, all civil monetary exactions naturally
“have some deterrent effect,” Hudson, 522 U.S. at 102,
but that does not render them punitive. See Ursery,
518 U.S. at 292. For example, in Hudson, the “presence of a deterrent purpose” for the monetary penalty
at issue did not render it criminal given that it also
“serve[d] to promote the stability of the banking industry.” 522 U.S. at 105. Likewise, in Smith, although the sex-offender registration requirements
served deterrent and retributive purposes, those purposes did not outweigh the fact that the requirements
were “reasonably related to” the non-punitive purpose
of preventing recidivism. 538 U.S. at 102. In short, a
statute that has “certain punitive aspects” does not
impose criminal punishment so long as it primarily
“serve[s] important nonpunitive goals.” Ursery, 518
U.S. at 290; see also 89 Firearms, 465 U.S. at 364.
Other factors. The two lesser factors that this
Court has identified marginally favor a punitive characterization of MVRA restitution. Petitioner is correct
that most MVRA crimes require scienter, and the conduct giving rise to restitution for crimes is obviously
criminal. But those factors typically bear “little
weight,” at least when applying the regulatory scheme
to criminal conduct is “necessary” to achieve its nonpunitive objectives. Smith, 538 U.S. at 105; see Hudson, 522 U.S. at 105. Here, the goal of obtaining
compensation for victims of crime presupposes the
commission of criminal offenses—something that
would be equally true if Congress had created a
51
separate civil cause of action for victims based on the
collateral-estoppel effect of federal criminal judgments, see 18 U.S.C. § 3664(l). That differs from statutes where the ostensible nonpunitive purpose—e.g.,
raising revenue—does not by its nature depend on a
criminal offense. See, e.g., Dep’t of Revenue of Mont.
v. Kurth Ranch, 511 U.S. 767, 781 (1994).
Moreover, legislatures have “impose[d] both a
criminal and a civil sanction in respect to the same act
or omission” in a variety of contexts, Helvering, 303
U.S. at 399, including asset forfeiture, 89 Firearms,
465 U.S. at 362; Ursery, 518 U.S. at 291; sex-offender
registration, Smith, 538 U.S. at 105; qui tam suits,
Marcus, 317 U.S. at 549-52; income-tax evasion,
Helvering, 303 U.S. at 399-405; and pollution, Ward,
448 U.S. at 250. That choice does not transform the
overwhelmingly compensatory nature of MVRA restitution into something so punitive that the Constitution demands it be treated as punishment.
A final consideration bears mention. Excluding
MVRA restitution from the scope of the Ex Post Facto
Clause would not give Congress a free hand to impose
retroactive monetary liability on criminal defendants.
MVRA restitution is bounded by the victim’s loss.
Should Congress expand its scope to authorize other
relief, restitution could evolve into criminal punishment.
52
CONCLUSION
The Court should dismiss the writ as improvidently granted. In the alternative, the Court should
affirm the judgment below.
Respectfully submitted.
CHRISTOPHER G. MICHEL
JOHN F. BASH
QUINN EMANUEL URQUHART Counsel of Record
& SULLIVAN, LLP
NICHOLAS J. CALUDA
1300 I St. NW, Suite 900
ALEX VAN DYKE
Washington, DC 20005
JACOB M. BLISS
(202) 538-8000
YUDITH PEREIRA-LOPEZ
QUINN EMANUEL URQUHART
SAM HEAVENRICH
& SULLIVAN, LLP
QUINN EMANUEL URQUHART 300 W. 6th St., Suite 2010
& SULLIVAN, LLP
Austin, TX 78701
295 5th Ave., 9th Floor
(737) 667-6101
New York, NY 10016
johnbash@
(212) 849-7000
quinnemanuel.com
Court-Appointed Amicus Curiae
August 22, 2025
APPENDIX
APPENDIX TABLE OF CONTENTS
Page
APPENDIX: Mandatory Victims Restitution
Act (MVRA), Pub. L. No. 104-132, Tit. II, Subtit.
A., 110 Stat. 1227 (1996) .....................................
1a
1a
APPENDIX
PUBLIC LAW 104–132—APR. 24, 1996
110 STAT. 1227
TITLE II—JUSTICE FOR VICTIMS
Subtitle A—Mandatory Victim Restitution
SEC. 201. SHORT TITLE.
This subtitle may be cited as the “Mandatory
Victims Restitution Act of 1996”.
SEC. 202. ORDER OF RESTITUTION.
Section 3556 of title 18, United States Code, is
amended—
(1) by striking “may” and inserting “shall”; and
(2) by striking “sections 3663 and 3664.” and
inserting “section 3663A, and may order restitution in
accordance with section 3663. The procedures under
section 3664 shall apply to all orders of restitution
under this section.”.
SEC. 203. CONDITIONS OF PROBATION.
Section 3563 of title 18, United States Code, is
amended—
(1) in subsection (a)—
(A) in paragraph (3), by striking “and” at the end;
(B) in the first paragraph (4) (relating to
conditions of probation for a domestic crime of
violence), by striking the period and inserting a
semicolon;
(C) by redesignating the second paragraph (4)
(relating to conditions of probation concerning drug
use and testing) as paragraph (5);
2a
(D) in paragraph (5), as redesignated, by striking
the period at the end and inserting a semicolon; and
(E) by inserting after paragraph (5),
redesignated, the following new paragraphs:
as
“(6) that the defendant—
“(A) make restitution in accordance with sections
2248, 2259, 2264, 2327, 3663, 3663A, and 3664; and
“(B) pay the assessment imposed in accordance
with section 3013; and
“(7) that the defendant will notify the court of any
material change in the defendant’s economic
circumstances that might affect the defendant’s ability
to pay restitution, fines, or special assessments.”; and
(2) in subsection (b)—
(A) by striking paragraph (2);
(B) by redesignating paragraphs (3) through (22)
as paragraphs (2) through (21), respectively; and
(C) by amending paragraph (2), as redesignated,
to read as follows:
“(2) make restitution to a victim of the offense under
section 3556 (but not subject to the limitation of
section 3663(a) or 3663A(c)(1)(A));”.
3a
SEC. 204. MANDATORY RESTITUTION.
(a) IN GENERAL.—Chapter 232 of title 18, United
States Code, is amended by inserting immediately
after section 3663 the following new section:
Ҥ 3663A. Mandatory restitution to victims of
certain crimes
“(a)(1) Notwithstanding any other provision of law,
when sentencing a defendant convicted of an offense
described in sub-[110 STAT. 1228] section (c), the court
shall order, in addition to, or in the case of a
misdemeanor, in addition to or in lieu of, any other
penalty authorized by law, that the defendant make
restitution to the victim of the offense or, if the victim
is deceased, to the victim’s estate.
“(2) For the purposes of this section, the term
‘victim’ means a person directly and proximately
harmed as a result of the commission of an offense
for which restitution may be ordered including, in
the case of an offense that involves as an element a
scheme, conspiracy, or pattern of criminal activity,
any person directly harmed by the defendant’s
criminal conduct in the course of the scheme,
conspiracy, or pattern. In the case of a victim who is
under 18 years of age, incompetent, incapacitated, or
deceased, the legal guardian of the victim or
representative of the victim’s estate, another family
member, or any other person appointed as suitable
by the court, may assume the victim’s rights under
this section, but in no event shall the defendant be
named as such representative or guardian.
“(3) The court shall also order, if agreed to by the
parties in a plea agreement, restitution to persons
other than the victim of the offense.
4a
“(b) The order of restitution shall require that
such defendant—
“(1) in the case of an offense resulting in
damage to or loss or destruction of property of a
victim of the offense—
“(A) return the property to the owner of the
property or someone designated by the owner;
or
“(B) if return of the property under
subparagraph
(A)
is
impossible,
impracticable, or inadequate, pay an amount
equal to—
‘‘(i) the greater of—
“(I) the value of the property on the
date of the damage, loss, or destruction;
or
“(II) the value of the property on the
date of sentencing, less
“(ii) the value (as of the date the property
is returned) of any part of the property that
is returned;
“(2) in the case of an offense resulting in
bodily injury to a victim—
“(A) pay an amount equal to the cost of
necessary medical and related professional
services and devices relating to physical,
psychiatric, and psychological care, including
nonmedical care and treatment rendered in
accordance with a method of healing
recognized by the law of the place of
treatment;
5a
“(B) pay an amount equal to the cost of
necessary physical and occupational therapy
and rehabilitation; and
“(C) reimburse the victim for income lost by
such victim as a result of such offense;
“(3) in the case of an offense resulting in
bodily injury that results in the death of the
victim, pay an amount equal to the cost of
necessary funeral and related services; and
“(4) in any case, reimburse the victim for lost
income
and
necessary
child
care,
transportation, and other expenses incurred
during participation in the investigation or
prosecution of the offense or attendance at
proceedings related to the offense.
[110 STAT. 1229] ‘‘(c)(1) This section shall apply
in all sentencing proceedings for convictions of, or
plea agreements relating to charges for, any
offense—
‘‘(A) that is—
“(i) a crime of violence, as defined in
section 16;
“(ii) an offense against property under
this title, including any offense committed
by fraud or deceit; or
“(iii) an offense described in section 1365
(relating to tampering with consumer
products); and
‘‘(B) in which an identifiable victim or
victims has suffered a physical injury or
pecuniary loss.
6a
“(2) In the case of a plea agreement that does
not result in a conviction for an offense
described in paragraph (1), this section shall
apply only if the plea specifically states that an
offense listed under such paragraph gave rise to
the plea agreement.
“(3) This section shall not apply in the case of
an offense described in paragraph (1)(A)(ii) if
the court finds, from facts on the record, that—
“(A) the number of identifiable victims is so
large as to make restitution impracticable; or
“(B) determining complex issues of fact
related to the cause or amount of the victim’s
losses would complicate or prolong the
sentencing process to a degree that the need
to provide restitution to any victim is
outweighed by the burden on the sentencing
process.
‘‘(d) An order of restitution under this section
shall be issued and enforced in accordance with
section 3664.”.
(b) CLERICAL AMENDMENT.—The analysis for
chapter 232 of title 18, United States Code, is amended
by inserting immediately after the matter relating to
section 3663 the following:
‘‘3663A. Mandatory restitution to victims of certain
crimes.”.
SEC. 205. ORDER OF RESTITUTION
VICTIMS OF OTHER CRIMES.
TO
(a) IN GENERAL.—Section 3663 of title 18, United
States Code, is amended—
(1) in subsection (a)(1)—
7a
(A) by striking ‘‘(a)(1) The court” and inserting
‘‘(a)(1)(A) The court”;
(B) by inserting ‘‘, section 401, 408(a), 409, 416,
420, or 422(a) of the Controlled Substances Act (21
U.S.C. 841, 848(a), 849, 856, 861, 863) (but in no
case shall a participant in an offense under such
sections be considered a victim of such offense
under this section),” before ‘‘or section 46312,”;
(C) by inserting ‘‘other than an offense described
in section 3663A(c),” after ‘‘title 49,”;
(D) by inserting before the period at the end the
following: ‘‘, or if the victim is deceased, to the
victim’s estate”;
(E) by adding at the end the following new
subparagraph:
‘‘(B)(i) The court, in determining whether to order
restitution under this section, shall consider—
“(I) the amount of the loss sustained by each
victim as a result of the offense; and
“(II) the financial resources of the defendant, the
financial needs and earning ability of the defendant
and the defendant’s [110 STAT. 1230] dependents,
and such other factors as the court deems
appropriate.
“(ii) To the extent that the court determines that the
complication and prolongation of the sentencing
process resulting from the fashioning of an order of
restitution under this section outweighs the need to
provide restitution to any victims, the court may
decline to make such an order.”; and
(F) by amending paragraph (2) to read as
follows:
8a
“(2) For the purposes of this section, the term ‘victim’
means a person directly and proximately harmed as a
result of the commission of an offense for which
restitution may be ordered including, in the case of an
offense that involves as an element a scheme,
conspiracy, or pattern of criminal activity, any person
directly harmed by the defendant’s criminal conduct in
the course of the scheme, conspiracy, or pattern. In the
case of a victim who is under 18 years of age,
incompetent, incapacitated, or deceased, the legal
guardian of the victim or representative of the victim’s
estate, another family member, or any other person
appointed as suitable by the court, may assume the
victim’s rights under this section, but in no event shall
the defendant be named as such representative or
guardian.”;
(2) by striking subsections (c) through (i); and
(3) by adding at the end the following new
subsections:
“(c)(1) Notwithstanding any other provision of law
(but subject to the provisions of subsections (a)(1)(B)
(i)(II) and (ii), when sentencing a defendant convicted
of an offense described in section 401, 408(a), 409, 416,
420, or 422(a) of the Controlled Substances Act (21
U.S.C. 841, 848(a), 849, 856, 861, 863), in which there
is no identifiable victim, the court may order that the
defendant make restitution in accordance with this
subsection.
“(2)(A) An order of restitution under this
subsection shall be based on the amount of public
harm caused by the offense, as determined by the
court in accordance with guidelines promulgated by
the United States Sentencing Commission.
9a
“(B) In no case shall the amount of restitution
ordered under this subsection exceed the amount
of the fine ordered for the offense charged in the
case.
“(3) Restitution under this subsection shall be
distributed as follows:
“(A) 65 percent of the total amount of
restitution shall be paid to the State entity
designated to administer crime victim
assistance in the State in which the crime
occurred.
“(B) 35 percent of the total amount of
restitution shall be paid to the State entity
designated to receive Federal substance abuse
block grant funds.
“(4) The court shall not make an award under
this subsection if it appears likely that such award
would interfere with a forfeiture under chapter 46
of this title or under the Controlled Substances
Act (21 U.S.C. 801 et seq.).
“(5) Notwithstanding section 3612(c) or any
other provision of law, a penalty assessment under
section 3013 or a fine under subchapter C of
chapter 227 shall take precedence over an order of
restitution under this subsection.
“(6) Requests for community restitution under
this subsection may be considered in all plea
agreements negotiated by the United States.
[110 STAT. 1231] “(7)(A) The United States
Sentencing
Commission
shall
promulgate
guidelines to assist courts in determining the
amount of restitution that may be ordered under
this subsection.
10a
“(B) No restitution shall be ordered under this
subsection until such time as the Sentencing
Commission promulgates guidelines pursuant
to this paragraph.
“(d) An order of restitution made pursuant to this
section shall be issued and enforced in accordance with
section 3664.”.
(b) SEXUAL ABUSE.—Section 2248 of title 18, United
States Code, is amended—
(1) in subsection (a), by inserting “or 3663A” after
“3663”;
(2) in subsection (b)—
(A) by amending paragraph (1) to read as
follows:
“(1) DIRECTIONS.—The order of restitution under
this section shall direct the defendant to pay to the
victim (through the appropriate court mechanism) the
full amount of the victim’s losses as determined by the
court pursuant to paragraph (2).”;
(B) by amending paragraph (2) to read as
follows:
“(2) ENFORCEMENT.—An order of restitution under
this section shall be issued and enforced in accordance
with section 3664 in the same manner as an order
under section 3663A.”;
(C) in paragraph (4), by striking subparagraphs
(C) and (D); and
(D) by striking paragraphs (5) through (10);
(3) by striking subsections (c) through (e); and
(4) by redesignating subsection (f) as subsection
(c).
11a
(c) SEXUAL EXPLOITATION AND OTHER ABUSE OF
CHILDREN.—Section 2259 of title 18, United States
Code, is amended—
(1) in subsection (a), by inserting “or 3663A” after
“3663”;
(2) in subsection (b)—
(A) by amending paragraph (1) to read as
follows:
“(1) DIRECTIONS.—The order of restitution under
this section shall direct the defendant to pay the victim
(through the appropriate court mechanism) the full
amount of the victim’s losses as determined by the
court pursuant to paragraph (2).”;
(B) by amending paragraph (2) to read as
follows:
“(2) ENFORCEMENT.—An order of restitution under
this section shall be issued and enforced in accordance
with section 3664 in the same manner as an order
under section 3663A.”;
(C) in paragraph (4), by striking subparagraphs
(C) and (D); and
(D) by striking paragraphs (5) through (10);
(3) by striking subsections (c) through (e); and
(4) by redesignating subsection (f) as subsection
(c).
(d) DOMESTIC VIOLENCE.—Section 2264 of title 18,
United States Code, is amended—
(1) in subsection (a), by inserting “or 3663A” after
“3663”;
(2) in subsection (b)—
12a
(A) by amending paragraph (1) to read as
follows:
“(1) DIRECTIONS.—The order of restitution under
this section shall direct the defendant to pay the victim
(through the appropriate court mechanism) the full
amount of the victim’s losses as determined by the
court pursuant to paragraph (2).”;
(B) by amending paragraph (2) to read as
follows: [110 STAT. 1232]
“(2) ENFORCEMENT.—An order of restitution under
this section shall be issued and enforced in accordance
with section 3664 in the same manner as an order
under section 3663A.”;
(C) in paragraph (4), by striking subparagraphs
(C) and (D); and
(D) by striking paragraphs (5) through (10);
(3) by striking subsections (c) through (g); and
(4) by adding at the end the following new
subsection (c):
“(c) VICTIM DEFINED.—For purposes of this section,
the term ‘victim’ means the individual harmed as a
result of a commission of a crime under this chapter,
including, in the case of a victim who is under 18 years
of age, incompetent, incapacitated, or deceased, the
legal guardian of the victim or representative of the
victim’s estate, another family member, or any other
person appointed as suitable by the court, but in no
event shall the defendant be named as such
representative or guardian.”.
(e) TELEMARKETING FRAUD.—Section 2327 of title
18, United States Code, is amended—
13a
(1) in subsection (a), by inserting “or 3663A” after
“3663”;
(2) in subsection (b)—
(A) by amending paragraph (1) to read as
follows:
“(1) DIRECTIONS.—The order of restitution under
this section shall direct the defendant to pay to the
victim (through the appropriate court mechanism) the
full amount of the victim’s losses as determined by the
court pursuant to paragraph (2).”;
(B) by amending paragraph (2) to read as
follows:
“(2) ENFORCEMENT.—An order of restitution under
this section shall be issued and enforced in accordance
with section 3664 in the same manner as an order
under section 3663A.”;
(C) in paragraph (4), by striking subparagraphs
(C) and (D); and
(D) by striking paragraphs (5) through (10);
(3) by striking subsections (c) through (e); and
(4) by redesignating subsection (f) as subsection
(c).
SEC. 206. PROCEDURE FOR ISSUANCE OF
RESTITUTION ORDER.
(a) IN GENERAL.—Section 3664 of title 18, United
States Code, is amended to read as follows:
Ҥ 3664. Procedure for issuance
enforcement of order of restitution
and
“(a) For orders of restitution under this title, the
court shall order the probation officer to obtain and
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include in its presentence report, or in a separate
report, as the court may direct, information sufficient
for the court to exercise its discretion in fashioning a
restitution order. The report shall include, to the
extent practicable, a complete accounting of the losses
to each victim, any restitution owed pursuant to a plea
agreement, and information relating to the economic
circumstances of each defendant. If the number or
identity of victims cannot be reasonably ascertained,
or other circumstances exist that make this
requirement clearly impracticable, the probation
officer shall so inform the court.
“(b) The court shall disclose to both the defendant
and the attorney for the Government all portions of the
presentence or [110 STAT. 1233] other report
pertaining to the matters described in subsection (a) of
this section.
“(c) The provisions of this chapter, chapter 227, and
Rule 32(c) of the Federal Rules of Criminal Procedure
shall be the only rules applicable to proceedings under
this section.
“(d)(1) Upon the request of the probation officer, but
not later than 60 days prior to the date initially set for
sentencing, the attorney for the Government, after
consulting, to the extent practicable, with all identified
victims, shall promptly provide the probation officer
with a listing of the amounts subject to restitution.
“(2) The probation officer shall, prior to submitting
the presentence report under subsection (a), to the
extent practicable—
“(A) provide notice to all identified victims of—
“(i) the offense or offenses of which the
defendant was convicted;
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“(ii) the amounts subject to restitution
submitted to the probation officer;
“(iii) the opportunity of the victim to submit
information to the probation officer concerning
the amount of the victim’s losses;
“(iv) the scheduled date, time, and place of the
sentencing hearing;
“(v) the availability of a lien in favor of the
victim pursuant to subsection (m)(1)(B); and
“(vi) the opportunity of the victim to file with
the probation officer a separate affidavit
relating to the amount of the victim’s losses
subject to restitution; and
“(B) provide the victim with an affidavit form to
submit pursuant to subparagraph (A)(vi).
“(3) Each defendant shall prepare and file with the
probation officer an affidavit fully describing the
financial resources of the defendant, including a
complete listing of all assets owned or controlled by
the defendant as of the date on which the defendant
was arrested, the financial needs and earning ability
of the defendant and the defendant’s dependents,
and such other information that the court requires
relating to such other factors as the court deems
appropriate.
“(4) After reviewing the report of the probation
officer, the court may require additional documentation or hear testimony. The privacy of any records
filed, or testimony heard, pursuant to this section
shall be maintained to the greatest extent possible,
and such records may be filed or testimony heard in
camera.
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“(5) If the victim’s losses are not ascertainable by
the date that is 10 days prior to sentencing, the
attorney for the Government or the probation officer
shall so inform the court, and the court shall set a
date for the final determination of the victim’s
losses, not to exceed 90 days after sentencing. If the
victim subsequently discovers further losses, the
victim shall have 60 days after discovery of those
losses in which to petition the court for an amended
restitution order. Such order may be granted only
upon a showing of good cause for the failure to
include such losses in the initial claim for
restitutionary relief.
“(6) The court may refer any issue arising in
connection with a proposed order of restitution to a
magistrate judge or special master for proposed
findings of fact and recommendations as to
disposition, subject to a de novo determination of the
issue by the court.
[110 STAT. 1234] ‘‘(e) Any dispute as to the proper
amount or type of restitution shall be resolved by the
court by the preponderance of the evidence. The
burden of demonstrating the amount of the loss
sustained by a victim as a result of the offense shall be
on the attorney for the Government. The burden of
demonstrating the financial resources of the defendant
and the financial needs of the defendant’s dependents,
shall be on the defendant. The burden of
demonstrating such other matters as the court deems
appropriate shall be upon the party designated by the
court as justice requires.
‘‘(f)(1)(A) In each order of restitution, the court shall
order restitution to each victim in the full amount of
each victim’s losses as determined by the court and
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without consideration of the economic circumstances
of the defendant.
‘‘(B) In no case shall the fact that a victim has
received or is entitled to receive compensation
with respect to a loss from insurance or any other
source be considered in determining the amount
of restitution.
‘‘(2) Upon determination of the amount of
restitution owed to each victim, the court shall,
pursuant to section 3572, specify in the restitution
order the manner in which, and the schedule
according to which, the restitution is to be paid, in
consideration of—
“(A) the financial resources and other assets of
the defendant, including whether any of these
assets are jointly controlled;
“(B) projected earnings and other income of the
defendant; and
“(C) any financial obligations of the defendant;
including obligations to dependents.
‘‘(3)(A) A restitution order may direct the
defendant to make a single, lump-sum payment,
partial payments at specified intervals, in-kind
payments, or a combination of payments at specified
intervals and in-kind payments.
‘‘(B) A restitution order may direct the
defendant to make nominal periodic payments if
the court finds from facts on the record that the
economic circumstances of the defendant do not
allow the payment of any amount of a restitution
order, and do not allow for the payment of the full
amount of a restitution order in the foreseeable
future under
payments.
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any reasonable
schedule
of
‘‘(4) An in-kind payment described in paragraph
(3) may be in the form of—
“(A) return of property;
“(B) replacement of property; or
“(C) if the victim agrees, services rendered to the
victim or a person or organization other than the
victim.
‘‘(g)(1) No victim shall be required to participate in
any phase of a restitution order.
‘‘(2) A victim may at any time assign the victim’s
interest in restitution payments to the Crime
Victims Fund in the Treasury without in any way
impairing the obligation of the defendant to make
such payments.
‘‘(h) If the court finds that more than 1 defendant
has contributed to the loss of a victim, the court may
make each defendant liable for payment of the full
amount of restitution or may apportion liability among
the defendants to reflect the level of contribution to the
victim’s loss and economic circumstances of each
defendant.
[110 STAT. 1235] ‘‘(i) If the court finds that more
than 1 victim has sustained a loss requiring
restitution by a defendant, the court may provide for a
different payment schedule for each victim based on
the type and amount of each victim’s loss and
accounting for the economic circumstances of each
victim. In any case in which the United States is a
victim, the court shall ensure that all other victims
receive full restitution before the United States
receives any restitution.
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‘‘(j)(1) If a victim has received compensation from
insurance or any other source with respect to a loss,
the court shall order that restitution be paid to the
person who provided or is obligated to provide the
compensation, but the restitution order shall provide
that all restitution of victims required by the order be
paid to the victims before any restitution is paid to
such a provider of compensation.
‘‘(2) Any amount paid to a victim under an order
of restitution shall be reduced by any amount later
recovered as compensatory damages for the same
loss by the victim in—
“(A) any Federal civil proceeding; and
“(B) any State civil proceeding, to the extent
provided by the law of the State.
“(k) A restitution order shall provide that the
defendant shall notify the court and the Attorney
General of any material change in the defendant’s
economic circumstances that might affect the
defendant’s ability to pay restitution. The court may
also accept notification of a material change in the
defendant’s economic circumstances from the United
States or from the victim. The Attorney General shall
certify to the court that the victim or victims owed
restitution by the defendant have been notified of the
change in circumstances. Upon receipt of the
notification, the court may, on its own motion, or the
motion of any party, including the victim, adjust the
payment schedule, or require immediate payment in
full, as the interests of justice require.
“(l) A conviction of a defendant for an offense
involving the act giving rise to an order of restitution
shall estop the defendant from denying the essential
allegations of that offense in any subsequent Federal
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civil proceeding or State civil proceeding, to the extent
consistent with State law, brought by the victim.
‘‘(m)(1)(A)(i) An order of restitution may be enforced
by the United States in the manner provided for in
subchapter C of chapter 227 and subchapter B of
chapter 229 of this title; or
‘‘(ii) by all other available and reasonable
means.
‘‘(B) At the request of a victim named in a
restitution order, the clerk of the court shall issue
an abstract of judgment certifying that a
judgment has been entered in favor of such victim
in the amount specified in the restitution order.
Upon registering, recording, docketing, or
indexing such abstract in accordance with the
rules and requirements relating to judgments of
the court of the State where the district court is
located, the abstract of judgment shall be a lien on
the property of the defendant located in such
State in the same manner and to the same extent
and under the same conditions as a judgment of a
court of general jurisdiction in that State.
‘‘(2) An order of in-kind restitution in the form of
services shall be enforced by the probation officer.
‘‘(n) If a person obligated to provide restitution, or
pay a fine, receives substantial resources from any
source, including inherit-[110 STAT. 1236]ance,
settlement, or other judgment, during a period of
incarceration, such person shall be required to apply
the value of such resources to any restitution or fine
still owed.
“(o) A sentence that imposes an order of restitution
is a final judgment notwithstanding the fact that—
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“(1) such a sentence can subsequently be—
“(A) corrected under Rule 35 of the Federal
Rules of Criminal Procedure and section 3742 of
chapter 235 of this title;
“(B) appealed and modified under section 3742;
“(C) amended under section 3664(d)(3); or
“(D) adjusted under section 3664(k), 3572, or
3613A; or
“(2) the defendant may be resentenced under
section 3565 or 3614.
“(p) Nothing in this section or sections 2248, 2259,
2264, 2327, 3663, and 3663A and arising out of the
application of such sections, shall be construed to
create a cause of action not otherwise authorized in
favor of any person against the United States or any
officer or employee of the United States.”.
(b) TECHNICAL AMENDMENT.—The item relating to
section 3664 in the analysis for chapter 232 of title 18,
United States Code, is amended to read as follows:
“3664. Procedure for issuance and enforcement of
order of restitution.”.
SEC. 207. PROCEDURE FOR ENFORCEMENT
OF FINE OR RESTITUTION ORDER.
(a) AMENDMENT OF FEDERAL RULES OF CRIMINAL
PROCEDURE.—Rule 32(b) of the Federal Rules of
Criminal Procedure is amended—
(1) in paragraph (1), by adding at the end the
following: “Notwithstanding the preceding sentence,
a presentence investigation and report, or other
report containing information sufficient for the court
to enter an order of restitution, as the court may
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direct, shall be required in any case in which
restitution is required to be ordered.”; and
(2) in paragraph (4)—
(A) by redesignating subparagraphs (F) and (G)
as subparagraphs (G) and (H), respectively; and
(B) by inserting after subparagraph (E), the
following new subparagraph:
“(F) in appropriate cases, information sufficient for
the court to enter an order of restitution;”.
(b) FINES.—Section 3572 of title 18, United States
Code, is amended—
(1) in subsection (b) by inserting “other than the
United States,” after “offense,”;
(2) in subsection (d)—
(A) in the first sentence, by striking “A person
sentenced to pay a fine or other monetary penalty”
and inserting “(1) A person sentenced to pay a fine
or other monetary penalty, including restitution,”;
(B) by striking the third sentence; and
(C) by adding at the end the following:
“(2) If the judgment, or, in the case of a restitution
order, the order, permits other than immediate
payment, the length of time over which scheduled
payments will be made shall be set [110 STAT. 1237]
by the court, but shall be the shortest time in which
full payment can reasonably be made.
“(3) A judgment for a fine which permits payments
in installments shall include a requirement that the
defendant will notify the court of any material change
in the defendant’s economic circumstances that might
affect the defendant’s ability to pay the fine. Upon
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receipt of such notice the court may, on its own motion
or the motion of any party, adjust the payment
schedule, or require immediate payment in full, as the
interests of justice require.”;
(3) in subsection (f), by inserting “restitution” after
“special assessment,”;
(4) in subsection (h), by inserting “or payment of
restitution” after “A fine”; and
(5) in subsection (i)—
(A) in the first sentence, by inserting “or
payment of restitution” after “A fine”; and
(B) by amending the second sentence to read as
follows: “Notwithstanding any installment
schedule, when a fine or payment of restitution is
in default, the entire amount of the fine or
restitution is due within 30 days after notification
of the default, subject to the provisions of section
3613A.”.
(c) POSTSENTENCE ADMINISTRATION.—
(1) PAYMENT OF A FINE OR RESTITUTION.—Section
3611 of title 18, United States Code, is amended—
(A) by amending the heading to read as follows:
“§ 3611. Payment of a fine or restitution”;
and
(B) by striking “or assessment shall pay the fine
or assessment” and inserting “, assessment, or
restitution, shall pay the fine, assessment, or
restitution”.
(2) COLLECTION.—Section 3612 of title 18, United
States Code, is amended—
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(A) by amending the heading to read as follows:
Ҥ 3612. Collection
restitution”;
of
unpaid
fine
or
(B) in subsection (b)(1)—
(i) in the matter preceding subparagraph (A),
by inserting “or restitution order” after “fine”;
(ii) in subparagraph (C), by inserting “or
restitution order” after “fine”;
(iii) in subparagraph (E), by striking “and”;
(iv) in subparagraph (F)—
(I) by inserting “or restitution order” after
“fine”; and
(II) by striking the period at the end and
inserting “; and”; and
(v) by adding at the end the following new
subparagrah:
“(G) in the case of a restitution order, information
sufficient to identify each victim to whom restitution
is owed. It shall be the responsibility of each victim to
notify the Attorney General, or the appropriate entity
of the court, by means of a form to be provided by the
Attorney General or the court, of any change in the
victim’s mailing address while restitution is still owed
the victim. The confidentiality [110 STAT. 1238] of any
information relating to a victim shall be maintained.”;
(C) in subsection (c)—
(i) in the first sentence, by inserting “or
restitution” after “fine”; and
(ii) by adding at the end the following: “Any
money received from a defendant shall be
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disbursed so that each of the following
obligations is paid in full in the following
sequence:
“(1) A penalty assessment under section 3013 of title
18, United States Code.
“(2) Restitution of all victims.
“(3) All other fines, penalties, costs, and other
payments required under the sentence.”;
(D) in subsection (d)—
(i) by inserting “or restitution” after “fine”;
and
(ii) by striking “is delinquent, to inform him
that the fine is delinquent” and inserting “or
restitution is delinquent, to inform the person of
the delinquency”;
(E) in subsection (e)—
(i) by inserting “or restitution” after “fine”;
and
(ii) by striking “him that the fine is in default”
and inserting “the person that the fine or
restitution is in default”;
(F) in subsection (f)—
(i) in the heading, by inserting “and
restitution” after “on fines”; and
(ii) in paragraph (1), by inserting “or
restitution” after “any fine”;
(G) in subsection (g), by inserting “or
restitution” after “fine” each place it appears; and
(H) in subsection (i), by
restitution” after “fines”.
inserting “and
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(3) CIVIL REMEDIES.—Section 3613 of title 18,
United States Code, is amended to read as follows:
Ҥ 3613. Civil remedies for satisfaction of an
unpaid fine
“(a) ENFORCEMENT.—The United States may enforce
a judgment imposing a fine in accordance with the
practices and procedures for the enforcement of a civil
judgment under Federal law or State law.
Notwithstanding any other Federal law (including
section 207 of the Social Security Act), a judgment
imposing a fine may be enforced against all property
or rights to property of the person fined, except that—
“(1) property exempt from levy for taxes pursuant
to section 6334(a) (1), (2), (3), (4), (5), (6), (7), (8), (10),
and (12) of the Internal Revenue Code of 1986 shall
be exempt from enforcement of the judgment under
Federal law;
“(2) section 3014 of chapter 176 of title 28 shall not
apply to enforcement under Federal law; and
“(3) the provisions of section 303 of the Consumer
Credit Protection Act (15 U.S.C. 1673) shall apply to
enforcement of the judgment under Federal law or
State law.
“(b) TERMINATION OF LIABILITY.—The liability to pay
a fine shall terminate the later of 20 years from the
entry of judgment or 20 years after the release from
imprisonment of the person fined, or upon the death of
the individual fined.
[110 STAT. 1239] “(c) LIEN.—A fine imposed
pursuant to the provisions of subchapter C of chapter
227 of this title, or an order of restitution made
pursuant to sections 2248, 2259, 2264, 2327, 3663,
3663A, or 3664 of this title, is a lien in favor of the
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United States on all property and rights to property of
the person fined as if the liability of the person fined
were a liability for a tax assessed under the Internal
Revenue Code of 1986. The lien arises on the entry of
judgment and continues for 20 years or until the
liability is satisfied, remitted, set aside, or is
terminated under subsection (b).
“(d) EFFECT OF FILING NOTICE OF LIEN.—Upon filing
of a notice of lien in the manner in which a notice of
tax lien would be filed under section 6323(f) (1) and (2)
of the Internal Revenue Code of 1986, the lien shall be
valid against any purchaser, holder of a security
interest, mechanic’s lienor or judgment lien creditor,
except with respect to properties or transactions
specified in subsection (b), (c), or (d) of section 6323 of
the Internal Revenue Code of 1986 for which a notice
of tax lien properly filed on the same date would not
be valid. The notice of lien shall be considered a notice
of lien for taxes payable to the United States for the
purpose of any State or local law providing for the
filing of a notice of a tax lien. A notice of lien that is
registered, recorded, docketed, or indexed in
accordance with the rules and requirements relating
to judgments of the courts of the State where the
notice of lien is registered, recorded, docketed, or
indexed shall be considered for all purposes as the
filing prescribed by this section. The provisions of
section 3201(e) of chapter 176 of title 28 shall apply to
liens filed as prescribed by this section.
“(e) DISCHARGE OF DEBT INAPPLICABLE.—No
discharge of debts in a proceeding pursuant to any
chapter of title 11, United States Code, shall discharge
liability to pay a fine pursuant to this section, and a
lien filed as prescribed by this section shall not be
voided in a bankruptcy proceeding.
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“(f) APPLICABILITY TO ORDER OF RESTITUTION.—In
accordance with section 3664(m)(1)(A) of this title, all
provisions of this section are available to the United
States for the enforcement of an order of restitution.”.
(4) DEFAULT.—Chapter 229 of title 18, United
States Code, is amended by inserting after section
3613 the following new section:
Ҥ 3613A. Effect of default
“(a)(1) Upon a finding that the defendant is in
default on a payment of a fine or restitution, the court
may, pursuant to section 3565, revoke probation or a
term of supervised release, modify the terms or
conditions of probation or a term of supervised release,
resentence a defendant pursuant to section 3614, hold
the defendant in contempt of court, enter a restraining
order or injunction, order the sale of property of the
defendant, accept a performance bond, enter or adjust
a payment schedule, or take any other action
necessary to obtain compliance with the order of a fine
or restitution.
“(2) In determining what action to take, the court
shall consider the defendant’s employment status,
earning ability, financial resources, the willfulness
in failing to comply with the fine or restitution order,
and any other circumstances that may have a [110
STAT. 1240] bearing on the defendant’s ability or
failure to comply with the order of a fine or
restitution.
“(b)(1) Any hearing held pursuant to this section
may be conducted by a magistrate judge, subject to de
novo review by the court.
“(2) To the extent practicable, in a hearing held
pursuant to this section involving a defendant who
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is confined in any jail, prison, or other correctional
facility, proceedings in which the prisoner’s
participation is required or permitted shall be
conducted by telephone, video conference, or other
communications technology without removing the
prisoner from the facility in which the prisoner is
confined.”.
(5) RESENTENCING.—Section 3614 of title 18,
United States Code, is amended—
(A) in the heading, by inserting “or restitution”
after “fine”;
(B) in subsection (a),
restitution” after “fine”; and
by
inserting
“or
(C) by adding at the end the following new
subsection:
“(c) EFFECT OF INDIGENCY.—In no event shall a
defendant be incarcerated under this section solely on
the basis of inability to make payments because the
defendant is indigent.”.
(d) CLERICAL AMENDMENT.—The table of sections at
the beginning of subchapter B of chapter 229 of title
18, United States Code, is amended to read as follows:
“Sec.
‘‘3611. Payment of a fine or restitution.
‘‘3612. Collection of an unpaid fine or restitution.
“3613. Civil remedies for satisfaction of an unpaid
fine.
“3613A. Effect of default.
“3614. Resentencing upon failure to pay a fine or
restitution.
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“3615. Criminal default.”.
SEC. 208. INSTRUCTION TO SENTENCING
COMMISSION.
Pursuant to section 994 of title 28, United States
Code, the United States Sentencing Commission shall
promulgate guidelines or amend existing guidelines to
reflect this subtitle and the amendments made by this
subtitle.
SEC. 209. JUSTICE DEPARTMENT REGULATIONS.
Not later than 90 days after the date of enactment
of this subtitle, the Attorney General shall promulgate
guidelines, or amend existing guidelines, to carry out
this subtitle and the amendments made by this
subtitle and to ensure that—
(1) in all plea agreements negotiated by the
United States, consideration is given to requesting
that the defendant provide full restitution to all
victims of all charges contained in the indictment or
information, without regard to the counts to which
the defendant actually pleaded; and
(2) orders of restitution made pursuant to the
amendments made by this subtitle are enforced to
the fullest extent of the law.
SEC. 210. SPECIAL
CONVICTED PERSONS.
ASSESSMENTS
ON
Section 3013(a)(2) of title 18, United States Code, is
amended—
(1) in subparagraph (A), by striking “$50” and
inserting “not less than $100”; and
(2) in subparagraph (B), by striking “$200” and
inserting “not less than $400”.
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[110 STAT. 1241] SEC. 211. EFFECTIVE DATE.
The amendments made by this subtitle shall, to the
extent constitutionally permissible, be effective for
sentencing proceedings in cases in which the
defendant is convicted on or after the date of
enactment of this Act.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.