Collection of Special Assessments and Restitution for Offenses under Chapters 77, 109A, 110, and 117, and 8 U.S.C. § 1324

The Domestic Trafficking Victims’ Fund (“Fund”) was established by the Justice for Victims of Trafficking Act.

See

18 U.S.C. § 3014(c).  Money collected from a $5,000 special assessment on offenders convicted of human trafficking, sexual assault, child sexual exploitation, and alien smuggling is placed into the Fund for grants to programs that assist victims of those crimes.

Id.

§§ 3014(a), (e), (h).  The Fund is scheduled to expire on September 30, 2021, but may be extended by Congress.

Id.

§ 3014(a).  Prosecutors handling sentencings after that date should confirm whether the Fund has been extended.  In an effort to continue to support the Fund, all Department attorneys handling cases in which a special assessment is required should use their best efforts to collect the assessment imposed under section 3014(a).  Because payment of the special assessment is mandatory unless the defendant is indigent, Department attorneys should make every effort to identify and provide sufficient facts to allow courts to determine the defendant’s ability to pay forthwith the $5,000 special assessment established in section 3014(a), or alternatively, identify and provide facts and information about the defendant’s ability to pay the assessment in the future.  Department attorneys should present information relevant to the defendant’s current and future ability to pay a special assessment to the district court through the United States Probation Department, so it may be included in the pre-sentence report.  In addition, Department attorneys should include this same information in any sentencing memorandum or pleadings filed with the district court.  If the defendant is non-indigent, Department attorneys should consult with their component’s financial litigation coordinator to provide the district court with a suggested payment plan for the defendant to pay the assessment.

in the pre-sentence report.  In addition, Department attorneys should include this same information in any sentencing memorandum or pleadings filed with the district court.  If the defendant is non-indigent, Department attorneys should consult with their component’s financial litigation coordinator to provide the district court with a suggested payment plan for the defendant to pay the assessment.

Furthermore, Department attorneys shall pursue restitution and forfeiture orders for victims. Both restitution and forfeiture are mandatory – regardless of the defendant’s ability to pay – for these crimes.

See, e.g.

, 18 U.S.C. § 1593 (restitution for human trafficking victims); 18 U.S.C. § 2248 (restitution for sexual assault victims); 18 U.S.C. § 2259 (restitution for victims of child sexual abuse material); 18 U.S.C. § 2429 (restitution for victims of transportation, travel, and enticement and coercion offenses); and 18 U.S.C. § 3663A (restitution for crimes of violence and Title 18 offenses against property – including by fraud or deceit).

See also

18 U.S.C. § 1594 (forfeiture for human trafficking victims)

[1]

; 18 U.S.C. § 2253 (forfeiture for victims of child sexual abuse material).  In fact, restitution and forfeiture are not mutually exclusive but are complementary of each other.  By statute, judges are required to order both, where applicable and appropriate.

See

Fed. R. Crim. P. 32.2(b)(1)(A) (forfeiture); 18 U.S.C. §3556 (2013) (restitution).  In human trafficking cases, restitution is mandatory even if the victim engaged in illegal conduct as a result of being trafficked.  Even when restitution is not mandatory, the sentencing court may require restitution in accordance with a plea agreement (18 U.S.C. § 3663A(a)(3)), or pursuant to the court’s discretion (18 U.S.C. § 3663).  The court may also require restitution as a condition of probation or supervised release (18 U.S.C. §§ 3563(b)(2); 3583(d))

e victim engaged in illegal conduct as a result of being trafficked.  Even when restitution is not mandatory, the sentencing court may require restitution in accordance with a plea agreement (18 U.S.C. § 3663A(a)(3)), or pursuant to the court’s discretion (18 U.S.C. § 3663).  The court may also require restitution as a condition of probation or supervised release (18 U.S.C. §§ 3563(b)(2); 3583(d)).  Department employees’ obligations with regard to forfeiture, ensuring victims obtain restitution, and best practices for doing so are addressed in the Attorney General Guidelines for Victim-Witness Assistance, in particular, Article V.H,

available at

https://www.justice.gov/sites/default/files/olp/docs/ag_guidelines2012.pdf

, and in

Justice Manual 9-16.320

(Plea Agreements and Restitution).  Additionally, Department attorneys should consult with their component’s financial litigation or asset forfeiture coordinators to ensure that any and all authorized collection methods and remedies are used to satisfy the special assessment and provide victims with full and timely restitution.

See

18 U.S.C. § 3771(a)(6).

[1]

On May 29, 2015, the Justice for Victims of Trafficking Act (Pub. L. 114-22, May 29, 2015, 129 Stat. 227), was enacted.  As a result, 18 U.S.C. § 1594 directs the Attorney General to pay victim restitution orders in cases where a forfeiture occurs pursuant to § 1594.

See

18 U.S.C. § 1594(f)(1).

[added December 2020]