How federal restitution works
Federal restitution is a court-ordered obligation requiring a criminal defendant to compensate identified victims for losses caused by the offense of conviction. It is imposed as part of the criminal sentence — not a separate civil judgment — but it is enforceable through both criminal and civil mechanisms. Federal restitution sits at the intersection of two main statutes: the Mandatory Victims Restitution Act of 1996 (MVRA), codified at 18 U.S.C. § 3663A, which makes restitution mandatory for certain offense categories; and the Victim and Witness Protection Act, codified at 18 U.S.C. § 3663, which authorizes discretionary restitution for any other federal offense.
MVRA's central operating provision is § 3663A(a)(1), which states that the court "shall order, in addition to … any other penalty authorized by law, that the defendant make restitution to the victim of the offense or, if the victim is deceased, to the victim's estate." The word "shall" is the key: the court does not have discretion to deny restitution to a qualifying victim of a qualifying offense based on the defendant's lack of resources. Only the amount, schedule of payment, and apportionment among co-defendants are within discretion.
When is restitution mandatory under MVRA?
MVRA applies to offenses described in 18 U.S.C. § 3663A(c):
| Offense category | Examples |
|---|---|
| Crimes of violence (18 U.S.C. § 16) | Assault, robbery, carjacking, kidnapping, federal murder, hate crimes |
| Offenses against property under Title 18 | Theft, embezzlement, bank fraud, wire fraud, mail fraud, identity theft, computer fraud — any offense "committed by fraud or deceit" |
| Tampering with consumer products (18 U.S.C. § 1365) | Product tampering involving death or serious injury |
| Telemarketing fraud (18 U.S.C. § 2326) | Wire fraud / mail fraud committed through telemarketing |
For offenses outside § 3663A(c) — for example certain federal drug offenses (other than where death or serious bodily injury resulted), most immigration offenses, and many regulatory offenses — restitution is discretionary under § 3663 and can be ordered only if (a) the court determines the benefit to victims outweighs the burden on defendant and on sentencing process, and (b) the defendant can pay or there is a plea agreement providing for restitution.
What counts as a victim?
Under 18 U.S.C. § 3663A(a)(2), a "victim" is a person directly and proximately harmed as a result of the commission of the offense for which restitution may be ordered, including any person harmed by the defendant's criminal conduct in the course of a scheme, conspiracy, or pattern of criminal activity. For offenses involving fraud (mail fraud, wire fraud, bank fraud), this scheme-or-pattern reach is broad: victims need not be named in the indictment if they fall within the scheme or pattern proved.
The Supreme Court's decision in Hughey v. United States, 495 U.S. 411 (1990), originally limited restitution to victims of the specific offense of conviction. Congress responded by enacting the broader scheme-or-pattern language now in MVRA. The Supreme Court in Lagos v. United States, 584 U.S. ___ (2018), narrowed the scope of recoverable "investigation costs" — limiting reimbursement to costs incurred during participation in government investigation/prosecution, not internal corporate investigations.
What loss is included?
Under 18 U.S.C. § 3663A(b), restitution covers the following categories of victim loss:
- Property loss — replacement value (or, if property is returned, the difference between original value and current value);
- Bodily injury — necessary medical, professional, and rehabilitation expenses; physical and occupational therapy; lost income; funeral expenses for victims who died;
- Loss of services for victims who died (e.g., to dependents);
- Lost income resulting from incapacity caused by the offense (limited to past lost income for living victims; broader for deceased);
- Travel and meeting expenses incurred in connection with investigation and prosecution — narrowed by Lagos.
Not included: pain and suffering, emotional distress, punitive damages, attorney's fees in collateral litigation, future lost income (in most circumstances), or speculative damages. Civil-style consequential damages are generally outside MVRA's scope.
Joint and several liability among co-defendants
Under 18 U.S.C. § 3664(h), when more than one defendant has contributed to the loss, the court may order joint and several liability or apportion among defendants based on each defendant's economic circumstances and contribution to the victim's loss. Joint-and-several is the more common approach, particularly in conspiracy cases. The PSR or judgment will specify the apportionment.
When one co-defendant pays restitution, the payment credits against all co-defendants' obligations to the victim. The paying defendant may have a separate civil contribution claim against the co-defendants, but the criminal judgment treats it as one obligation owed to the victim with multiple obligors.
Payment schedule and the 20-year enforcement window
Under 18 U.S.C. § 3664(f)(3), the court sets a payment schedule based on the defendant's financial resources, projected earnings, and obligations to dependents. Schedules typically require nominal monthly payments during incarceration (often $25–$50 per quarter under BOP's Inmate Financial Responsibility Program) and substantial percentage-of-income payments during supervised release.
Federal restitution is enforceable for 20 years after release from imprisonment under 18 U.S.C. § 3613(b). During that period the government can use the full range of civil and administrative collection tools — Treasury Offset (tax refunds, federal benefits), wage garnishment (up to 25% of disposable earnings under § 3613(a) and 15 U.S.C. § 1673), bank levies, real-property liens, and judicial enforcement actions. Liens arise automatically under § 3613(c) without further proceedings.
References
- 18 U.S.C. § 3663A — Mandatory Victims Restitution Act (MVRA).
- 18 U.S.C. § 3663 — Discretionary restitution under VWPA.
- 18 U.S.C. § 3664 — Procedure for issuance and enforcement of order of restitution.
- 18 U.S.C. § 3613 — Civil remedies for satisfaction of unpaid fine (applies to restitution; 20-year enforcement).
- 18 U.S.C. § 3572 — Imposition of fine and similar provisions.
- Hughey v. United States, 495 U.S. 411 (1990) — Pre-MVRA limit; superseded.
- Lagos v. United States, 584 U.S. ___ (2018) — Investigation-cost reimbursement narrowed.
- 11 U.S.C. § 523(a)(7) — Restitution is non-dischargeable in bankruptcy.
FAQ
Can the court decline to impose restitution because the defendant cannot pay?
No — not for MVRA offenses. The Mandatory Victims Restitution Act of 1996 explicitly eliminated the defendant's ability-to-pay as a factor in deciding whether to impose restitution. 18 U.S.C. § 3664(f)(1)(A) requires the court to order restitution "in the full amount of each victim's losses … without consideration of the economic circumstances of the defendant." Inability to pay is relevant only to the schedule of payment under § 3664(f)(3), not to the existence or amount of the obligation.
What is the difference between MVRA and VWPA restitution?
MVRA (18 U.S.C. § 3663A) makes restitution mandatory for crimes of violence, Title 18 property offenses (including fraud offenses), product-tampering, and telemarketing fraud. VWPA (18 U.S.C. § 3663) makes restitution discretionary for any federal offense not covered by MVRA — e.g., certain drug offenses, regulatory offenses, immigration offenses. Under VWPA the court can weigh defendant resources and other factors before ordering. The procedures for amount, schedule, and enforcement under § 3664 are largely the same once restitution is ordered.
How is the loss amount determined?
The PSR investigation produces a loss estimate. Both sides may file objections under Federal Rule of Criminal Procedure 32(i) and § 3664(d)(6). For offenses with many victims, the government must establish each victim's loss by a preponderance of the evidence; the defendant has the burden as to financial circumstances and offsets. Disputed loss is resolved at the sentencing hearing (or a separate restitution hearing within 90 days post-sentencing under § 3664(d)(5)). Documentary evidence — invoices, bank statements, victim affidavits, audit reports — typically drives the determination.
Can I appeal a restitution order?
Yes. The amount, scope, and procedure of a restitution order are all appealable on direct appeal as part of the sentence. Standard of review: legal questions de novo, factual findings for clear error, the apportionment decision for abuse of discretion. The defendant must preserve objections at sentencing or during the 90-day post-sentencing window. Untimely or inflated restitution awards are routinely modified on appeal.
What if the victim has already been compensated by insurance?
Under 18 U.S.C. § 3664(j)(1), when a victim has received compensation from insurance or another source for the loss, restitution is ordered for the original amount of the loss, but the court directs that the amount paid to the victim be limited to actual unrecovered loss. The remainder is paid to the third party (e.g., the insurer) as subrogee. This preserves the deterrent effect of full restitution while preventing double recovery.
Can I be incarcerated for failing to pay restitution?
Generally no — not solely for inability to pay, under Bearden v. Georgia, 461 U.S. 660 (1983). But willful failure to make payments according to the schedule is a violation of supervised release under 18 U.S.C. § 3583 and can result in revocation and additional incarceration. Probation officers monitor compliance and refer suspected willful nonpayment for revocation proceedings. The willfulness requirement is the safety valve: documented inability to pay (job loss, medical disability) is a defense to revocation.
How does restitution interact with forfeiture?
Restitution and forfeiture are independent. Forfeiture under 18 U.S.C. § 981 / § 982 / § 853 takes the defendant's interest in property used in or derived from the offense and transfers it to the United States. Restitution under MVRA requires the defendant to pay the victim. The same dollar of loss can both be forfeited (to the government) and ordered as restitution (to the victim). However, under § 981(e), the Attorney General has authority to remit forfeited assets to victims through the asset-forfeiture program — and the BOP's Inmate Financial Responsibility Program coordinates payments so victims are made whole before remaining funds go to the government.
Does restitution apply to attempted or inchoate offenses?
Restitution requires identifiable victim loss caused by the offense conduct. Pure attempts or conspiracies where no loss actually materialized typically result in no restitution order (because there's nothing to restitute). However, in scheme cases where some losses occurred even if the full scheme failed, those actual losses are recoverable as restitution. The Fifth Circuit has applied this distinction consistently in fraud cases.
What happens to restitution if I'm acquitted on direct appeal?
If the conviction is reversed on direct appeal, the restitution order falls with it — restitution is part of the sentence and cannot survive without the conviction. If the conviction is affirmed but resentencing is ordered (e.g., for a Guidelines error), the restitution can be revisited on resentencing. If the case is remanded for partial relief only (e.g., counts that did not generate restitution are reversed), the restitution related to the affirmed counts typically survives.
Can co-defendants apportion restitution unevenly?
Yes, under 18 U.S.C. § 3664(h). The court can order joint and several liability (the default in most cases) or apportion among defendants based on (1) each defendant's contribution to the victim's loss and (2) each defendant's economic circumstances. Cooperators, low-level participants, and defendants with minimal assets sometimes receive a specifically apportioned share rather than joint-and-several. The apportionment is set out in the judgment and binds all co-defendants.
Last reviewed: May 16, 2026 by Reggie London · Next review: November 16, 2024.