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64 Okla. L. Rev. 653 (2011-2012)
When Does Restitution Become Retribution

handle is hein.journals/oklrv64 and id is 673 raw text is: WHEN DOES RESTITUTION BECOME
I. Introduction
During a civil trial, a defendant is typically focused on one thing: How
much money will this trial cost me if I lose? The focus is quite different
for a criminal defendant: How much time will I serve in prison if I am
found guilty? Defense teams in both criminal and civil proceedings have
similar objectives, i.e., minimize any damages imposed against their clients.
However, in the scheme of things, financial loss is usually preferable to
prison or loss of liberty. For that reason, most people lose sight of the fact
that oftentimes a criminal defendant may face not only serious jail time but
also debilitating financial losses in the form of restitution to identified
victims. Restitution should be awarded to victims to compensate them for
their losses, but excess restitution is tantamount to unfair retribution.
Excess restitution has become particularly troubling in child pornography
cases when one victim's image is illegally possessed or distributed by
multiple convicted criminal defendants. The result of duplicative restitution
is often unjust enrichment of victims, who are sometimes compensated
millions of dollars for one illicit image. This raises serious questions
regarding when and how justice is served through the restitution process
during criminal proceedings.
At the end of a federal criminal trial, if the defendant is convicted, the court
sentences the defendant to a term of imprisonment, imposes a standard term of
supervised release, and issues a $100 assessment/criminal monetary fine per
each count of conviction to be paid to the court.' Yet, there is an unfamiliar
issue that increasingly arises at sentencing that touches upon the same
concerns as those facing a civil defendant: restitution.
* Assistant Professor of Law, Lincoln Memorial University-Duncan School of Law. I
would like to thank Robert Reid, Pat Laflin, Professor Bruce Beverly, and Associate Dean
April Meldrum for their thoughts and criticism on this Article, and Heather Shubert for her
research assistance. I would also like to thank Judge Collier in bringing this issue to the
forefront and inspiring me to delve further into this specific area of criminal law.
** Chief United States District Court Judge for the Eastern District of Tennessee. I
would like to thank my law clerk Adam Sanders for his thoughts and comments on this issue
and his invaluable research assistance.
1. FED. R. CRIM. P. 32.


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