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26 Fed. Sent'g Rep. 59 (2013-2014)
Restitution from the Victim's Perspective - Recent Developments and Future Trends

handle is hein.journals/fedsen26 and id is 61 raw text is: I. Introduction
Restitution is becoming an increasingly significant feature
of sentencing, and lawyers practicing federal criminal law
will be well-served to become familiar with it. To be sure,
the main focus at sentencing has been and likely will
remain on prison time. But recent developments in the law
of restitution, coupled with an ever-increasing focus on
victims' rights, may well lead to a defendant convicted in
federal court-and her family-facing the burdens of
a restitution order long after her release from prison. And
defendants aren't the only ones who need to worry about
restitution. Restitution also provides many crime victims
with a powerful weapon they can use to help recover full
compensation (including possibly attorneys' fees and
investigative expenses) for the losses caused by a defen-
dant's crime-without having to bother with the expense,
hassle, and uncertainty of filing their own civil action, going
to court, or trying to collect on a judgment themselves.
Restitution also plays a role where a corporate target hopes
to stave off a conviction by settling out of court-negotiat-
ing a deferred prosecution or non-prosecution agreement,
for example-since the resolution often requires the cor-
poration to provide full compensation to the victims.
This article provides a brief overview of the legal land-
scape governing restitution and examines some of the sig-
nificant trends and emerging issues we think all parties
involved in federal criminal cases should know. We will
focus on: (i) the expansion of restitution to cover a broad
array of crimes and harms; (2) the broadening view of who
qualifies as a victim under the Mandatory Victims Res-
titution Act of 1996 (MVRA)' and the Victim and Witness
Protection Act of 1982 (VWPA)2; and (3) the expansion of
restitution to cover a larger range of victims' expenses,
including in some cases portions of the victims' legal
expenses, under United States v. Amato3 and subsequent
II. Restitution-A Brief History and the Statutory
For many years, restitution was dismissed as almost an
afterthought in federal criminal cases. Courts infrequently
ordered restitution, and then only did so as a condition of
parole.4 Things started to change in the 1970s and '8os,
however, when the victims' rights movement began to
reflect a growing sentiment that the criminal justice system

focused too heavily on the offender himself, and often
failed to address adequately the interests and needs of the
victim.5 In 1982, President Reagan's Task Force on Victims
of Crime recommended, as one of its central reforms, that
courts order restitution in all cases, unless [they] provide
specific reasons for failing to require it.6 That led to
Congress passing the VWPA later the same year, which
gave federal courts statutory authority to order restitution at
sentencing in a wide range of federal criminal cases,
including Title 18 cases and any criminal case in which the
parties included restitution in the plea agreement.7
The trend continued over the next few decades, with
Congress enacting a number of statutes that have served to
expand significantly the role that restitution plays in the
statutory sentencing structure. In 1994, Congress passed
the Violence Against Women Act, which made restitution
mandatory for certain sex crimes and-significantly for
white-collar cases (as we'll discuss further in Part V
below)-amended the VWPA to allow crime victims to
recover necessary. . .expenses related to participation in
the investigation or prosecution of the offense.8 Two years
later, in 1996, Congress enacted the MVRA, making resti-
tution mandatory in many federal criminal cases, and
requiring defendants in those cases to pay the full amount
of each victim's losses regardless of their economic
In 2004, as a part of the Justice for All Act, Congress
enacted the Crime Victims' Rights Act (CVRA), which
codified the rights of crime victims-including the right
to full and timely restitution-and provided victims with
the means to enforce those rights.o The CVRA imposes
affirmative duties on the Department of Justice and fed-
eral courts to ensure that crime victims are afforded their
rights under the statute. The CVRA also gives a crime
victim the power to assert his rights independently in
district court, and to petition the court of appeals for a writ
of mandamus if the district court denies the relief he
requested.' This means that a crime victim, in certain
circumstances, actually has the power to overturn a district
court's decisions, including decisions regarding guilty
pleas, sentences, and restitution, if she is denied her rights
under the CVRA.'3
The upshot of all this is that the restitution statutory
scheme now evidences clear legislative intent to provide
broad compensation to crime victims. It is now well settled

Federal Sentencing Reporter, Vol. 26, No. I, pp. 59-66, ISSN 1053-9867, electronic ISSN 1533-8363.
@ 2013 Vera Institute of Justice. All rights reserved. Please direct requests for permission to photocopy
or reproduce article content through the University of California Press's Rights and Permissions website,
http://www.ucpressjournals.com/reprintInfo.asp. DOI: IO.1525/fsr.2013.26.I-59-
FEDERAL SENTENCING REPORTER               * VOL. 26, NO. 1       * OCTOBER 2013

Partner, Arnold &
Porter LLP
Associate, Arnold &
Porter LLP


Resttution from the Victims Perspective-Recent
Development and Future Trends

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