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November 8, 1995

Requiring restitution from every defendant in every federal criminal case without consideration of a defendant's ability to pay would be a misallocation of judicial resources and taxpayer dollars, and is unlikely to result in any appreciable increase in compensation to victims of crime, a federal judge told the Senate Judiciary Committee today.

"These proposals would significantly alter current victim restitution law and practice, replacing a flexible system, based on common sense and judicial discretion, with an inflexible, mandatory system which will be extremely expensive to implement," said Judge Maryanne Trump Barry, chair of the Committee on Criminal Law of the Judicial Conference of the United States. Both the Senate and House are considering various bills that contain mandatory restitution provisions.

Judge Barry acknowledged that final decisions about crime control in society are policy decisions that must be made by Congress. She added, however, that because judges see the application of laws daily in their courtrooms, they can offer a unique perspective on such issues. Judge Barry said that although federal judges do have a profound concern for the victims of crime, they question the value and utility of ordering restitution where the defendant has no current ability and little potential to pay. If full restitution is mandatory, the court would be required to make a finding as to the dollar amount of liability of every defendant, including those defendants who can never be expected to pay. This would be an extremely difficult and time-consuming process, which also would place great demands on judicial branch support staff. Probation officers may be called upon to identify victims entitled to restitution and determine the amount of loss sustained by each victim. In those many cases where full restitution is not possible, the involvement of U.S. attorneys, probation officers, federal public defenders, and judges and magistrate judges would continue for lengthy periods of time. In these times of tight budgets, it must be asked whether valuable resources should be expended trying to collect restitution from defendants who cannot pay.

In her testimony, Judge Barry made the following observations:

* Eighty-five percent of all federal criminal defendants are indigent at their time of conviction and will never be able to make more than nominal restitution payments, regardless of the collection system in place.

* Under the proposed legislation, the concepts of "victim" and "harm" are broadened dramatically in a way that would compound the cost and burden associated with the mandate for a restitution order in every case, regardless of the chances of collection. Under S.3, "victims" who may be entitled to restitution include not only any person directly injured by the criminal act, but also any person who was physically, emotionally, or pecuniarily injured. The "harm" to this expanded category of victims may occur during a criminal episode during which the offense occurred or in the course of a scheme, conspiracy, or pattern of unlawful conduct related to offense.

* The proposed legislation seems to contemplate that restitution payment schedules may stretch long into the future, including the time period after the defendant is no longer within the criminal jurisdiction of the court. The victim or defendant may petition the court at any time without limit or finality, to modify a restitution order in view of the economic conditions of the defendant. This provision would be tantamount to transforming the federal courts into a collection agency.

* Mandatory restitution is a form of mandatory sentencing that results in unenforceable orders and erosion of respect for the judicial process. The Judicial Conference consistently has expressed concern with mandatory restitution because imposition of restitution without consideration of ability to pay would make such orders unenforceable. The imposition of unenforceable sentences breeds contempt for the justice system.

* The Administrative Office of the U.S. Courts should not be responsible for privatized criminal debt collection efforts. Assigning to an entity of the third branch such executive management responsibility is obviously inappropriate and raises constitutional questions implicating the separation of powers. It is equally inappropriate for the federal Judiciary to collect debts owed to private parties.

"The federal Judiciary shares your concerns for the victims of crime and certainly does not oppose the goal of increasing the level of restitution to the victims of federal crimes," Judge Barry told the Senate Judiciary Committee. "We believe, however, that the key to the increased recovery of restitution lies not in across-the-board mandatory restitution orders, but carefully crafted orders that take into account the loss of the victim and the realistic possibilities for recovery. If flaws in the current provisions are identified, we stand ready to assist in making whatever improvements may be necessary."

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