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August 21, 2008

Extended discussion of restitution by Second Circuit

Today in US v. Amato, No. 06-5600 (2d Cir. Aug. 21, 2008) (available here), the Second Circuit had occassion to discuss federal criminal restitution.  Here is a snippet from the start of the opinion:

Restitution is a complex subject because civil and criminal restitution are somewhat different. The civil rule is often stated under the rubric of unjust enrichment: "A person who has been unjustly enriched at the expense of another is required to make restitution to the other." Restatement (First) of Restitution § 1 (1937). In the criminal law, victims' rights are generally the focus of restitution provisions, including those contained in the Mandatory Victims Restitution Act of 1996 (MVRA), the criminal statute with which we deal on this appeal. Its purpose is primarily to restore the victim to his or her prior state of well-being, and to that end to require federal "criminal defendants to pay full restitution to the identifiable victims of their crimes."  S. Rep. No. 104-179, at 12-13 (1995).

Under the MVRA, restitution must be ordered without consideration of the defendant's economic circumstances. See 18 U.S.C. § 3664(f)(1)(A).  Consequently, while going down the road to committing a crime may be as easy as the "descent to Avernus," the payment of restitution under the MVRA can be as hard as the return to view "etherial light" [footnote quoting Virgil's Aeneid omitted]. The question we must address is not whether the defendants are capable of making this payment but merely whether the items included in the restitution order fall within the scope of the MVRA, as well as whether the order was otherwise properly calculated.

August 21, 2008 at 12:06 PM | Permalink


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I've generally conceived criminal restitution as roughly equivalent to economic tort damages. The confusion of the civil and criminal terms, which mean different things, is one of the reasons that I don't like the label "restitution" in the civil context.

One risks enough confusing when using a legal term of art. Using a legal term of art with two contradictory meanings in different contexts is to invite ambiguity and miscommunication.

Posted by: ohwilleke | Aug 21, 2008 12:34:17 PM

My PO says that he wants "all" of my wages towards
restitution that I owe in a criminal case. Can he
legally take all of my earnings. What percentage is
typical and what is the maximum that he can take?

Posted by: theresa | Sep 8, 2008 2:05:45 PM

I am a victim that has received a restitution order for $442,000. The federal prosecutor is sitting on his hands and despite my constant calls has only now taken action against a discretionary anti-alienation trust (valued at more than $800,000) set up by the criminal's grandfather with him as the beneficiary. Mandatory distributions of interest at least quarterly are required. The prosecutor only acted because I got an abstract of judgment that states "like a tax lien" and filed a writ of execution, pro-se, in state court. The attorney for the trust claims I have no rights only the US Govt. can seize like a tax lien. The Pennsylvania judge agreed with the Pennsylvania lawyer. The trust moved to New Jersey. Now I am back with another writ. Do I have any right to seize this trust or the distributions as a private citizen seeking to enforce a restitution order?

Posted by: George Pickett | Sep 16, 2009 9:41:32 PM

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