oversight

Federal Courts: Differences Exist in Ordering Fines and Restitution

Published by the Government Accountability Office on 1999-05-06.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

                          United States General Accounting Office

GAO                       Testimony
                          Before the Subcommittee on Crime, Committee on the
                          Judiciary, House of Representatives



For Release on Delivery
Expected at
9:30 a.m. EDT
                          Federal Courts
Thursday
May 6, 1999

                          Differences Exist in
                          Ordering Fines and
                          Restitution
                          Statement of Richard M. Stana, Associate Director
                          Administration of Justice Issues
                          General Government Division




GAO/T-GGD-99-95
Statement

Federal Courts: Differences Exist in Ordering
Fines and Restitution

               Mr. Chairman and Members of the Subcommittee:

               I am pleased to be here today to discuss the results of our review of the
               imposition of fines and restitution in federal criminal cases. My statement
               will outline the results presented in our recently completed report, Federal
               Courts: Differences Exist in Ordering Fines and Restitution (GAO/GGD-99-
               70, May 6, 1999).

               For that report, you asked us to (1) identify the percentages of those
               offenders who were ordered to pay fines and restitution in fiscal year 1997
               and those who were not, (2) identify differences across judicial circuits
               and districts in the percentages of those offenders who were ordered to
               pay fines or restitution and those who were not, and (3) provide officials’
               opinions about possible reasons for these differences. We also
               documented changes in the rate at which offenders were ordered to pay
               fines and restitution before and after the Mandatory Victims Restitution
                            1
               Act (MVRA), which was enacted April 24, 1996.

               To answer your questions, we used 1997 data from the United States
               Sentencing Commission (USSC). USSC maintains a computerized data
               collection system, which forms the basis of its clearinghouse of federal
               sentencing information. We performed a statistical analysis of this data
               base for all 12 judicial circuits and 94 districts for offenders ordered to pay
               fines and restitution. We performed multivariate statistical analyses to
               determine which factors affected the likelihood of offenders being ordered
               to pay fines or restitution. We did not determine whether fines or
               restitution ordered were actually paid. We discussed our results with
               officials of the Department of Justice (DOJ), the Administrative Offices of
               the U.S. Courts (AOUSC), USSC, and with chief judges, chief probation
               officers, and representatives of U.S. Attorneys offices in seven judicial
               districts. A complete description of our scope and methodology can be
               found in our report.

               Individuals convicted of a federal crime can be ordered by the court to pay
Background     a fine or restitution at sentencing. Criminal fines, which are punitive, are to
               be paid in most cases to DOJ’s Crime Victims Fund. USSC Guidelines
               provide guidance on the minimum and maximum fine amounts to be
               imposed by the courts, based on the offense. In establishing the USSC,
               Congress sought, as one objective, uniformity in sentencing by narrowing
               the wide disparity in sentences imposed for similar criminal offenses
               committed by similar criminal offenders. Fines may be waived if the
               1
                   Title II of Public Law 104-132.




               Page 1                                                         GAO/T-GGD-99-95
                        Statement
                        Federal Courts: Differences Exist in Ordering Fines and Restitution




                        offender establishes that he or she is unable to pay and is not likely to
                        become able to pay a fine. MVRA reformed restitution law and now
                        requires the court to order full restitution in certain cases to each victim in
                        the full amount of each victim’s losses, without regard to the offender’s
                        economic situation. Previously, as with fines, the court could waive
                        restitution, in most cases, based on offenders’ inability to pay.

                        While many factors influenced whether an offender was ordered to pay a
The Importance of the   fine or restitution, the judicial circuit or district where the offender was
Judicial Circuit or     sentenced was a major factor during fiscal year 1997. This variation
District in the         among judicial circuits and districts occurred overall for all federal
                        offenders sentenced under USSC Guidelines during that year; and,
Likelihood of an        although occurring less, this variation persisted when we performed
Offender’s Being        multivariate statistical analysis for federal offenders sentenced for four
Ordered to Pay a Fine   types of offenses.
or Restitution
                        Most of the approximately 48,000 federal offenders sentenced under USSC
                        Guidelines in fiscal year 1997 were not ordered by the courts to pay a fine
                        or restitution. About 19 percent were only fined by the courts, and about
                        20 percent were only ordered to pay restitution. Of the offenders
                        sentenced, about 2 percent were ordered to pay both fines and restitution.
                        The total amount of fines and restitution ordered was over $1.6 billion
                        dollars.

                        The percentage of offenders ordered to pay fines or restitution varied
                        greatly across the 12 federal judicial circuits and 94 federal judicial
                        districts. Across districts, for example, the percentage of offenders
                        ordered to pay fines ranged from 1 percent to 84 percent, and the
                        percentage of offenders ordered to pay restitution ranged from 3 percent
                        to 49 percent. The likelihood of an offender’s being ordered to pay fines or
                        restitution could have been three or more times greater in one federal
                        judicial district than in an adjacent district.

                        An important factor in determining whether an offender was ordered to
                        pay a fine or restitution was the type of offense committed. While 6
                        percent of offenders sentenced for immigration offenses were ordered to
                        pay a fine, almost one-third of property offenders were ordered to pay
                        fines. Similarly, while 1 percent of drug offenders were ordered to pay
                        restitution, almost two-thirds of fraud offenders were ordered to pay
                        restitution.

                        Besides the type of offense committed, other factors, based on our
                        statistical analysis, that were associated with whether an offender was



                        Page 2                                                                GAO/T-GGD-99-95
  Statement
  Federal Courts: Differences Exist in Ordering Fines and Restitution




  ordered to pay included sex, race, education, citizenship, length of
  sentence, and type of sentence imposed, such as prison, probation, or an
  alternative.

  We controlled for all those factors for four specific types of offenses in our
  multivariate statistical analysis, and the judicial circuit or district in which
  the offender was sentenced continued to be a major factor in determining
  whether an offender was ordered to pay a fine or restitution. For example,
  offenders convicted of fraud in the Eastern District of Pennsylvania, which
  includes Philadelphia, were 13 times more likely to be ordered to pay a
  fine and 3 times more likely to be ordered to pay restitution than fraud
  offenders in the Eastern District of New York, which includes Brooklyn.
  Other examples include the following:

• Offenders convicted of fraud offenses in the Middle District of Florida,
  which includes Orlando, were four times more likely to be ordered to pay
  restitution than those convicted of the same offense in the Central District
  of California, which includes Los Angeles.

• Offenders convicted of drug trafficking offenses were 99 times more likely
  to be ordered to pay a fine in the Western District of Texas, which includes
  San Antonio, than they were in the Southern District of California, which
  includes San Diego.

• Offenders convicted of larceny offenses were 177 times more likely to be
  ordered to pay a fine in the Middle District of Georgia, which includes
  Macon, than in the Southern District of Florida, which includes Miami.

  Some court officials and prosecutors provided explanations of why
  differences existed among the districts. Some attributed the differences to
  the nature and type of offenses committed or types of offenders sentenced
  in the districts. Some officials believed that the culture, or management
  style, in the judicial district among the prosecutors and court officials
  contributed to whether offenders were fined or ordered to pay restitution.
  The culture included how prosecutors and court officials worked together
  to identify victims and their losses, among other factors.




  Page 3                                                                GAO/T-GGD-99-95
                           Statement
                           Federal Courts: Differences Exist in Ordering Fines and Restitution




                           Although the imposition of restitution for certain offenses became
The Effect of              mandatory with the passage of MVRA, the percentage of offenders, overall,
Mandatory Restitution      ordered to pay restitution during fiscal year 1997 actually declined to 12
Has Been Mixed, but        percent for those who were covered by MVRA’s provisions, down from 26
                           percent for those who were not. During fiscal year 1997, about 45 percent
Overall the Percentage     of offenders sentenced under USSC Guidelines were subject to MVRA’s
of Offenders Ordered       provisions, and 55 percent were not.
to Pay Has Declined
                           MVRA’s amendments are to be, to the extent constitutionally permissible,
                           effective for sentencing proceedings in cases in which the defendant is
                           convicted on or after the date of enactment, which was April 24, 1996.
                           However, because of an ex post facto issue, DOJ has issued guidelines that
                           any provisions of MVRA for determining whether to impose restitution or
                           the amount of restitution would be applied only prospectively to offenses
                           committed on or after April 24, 1996. In general, the ex post facto clause
                           of the U.S. Constitution has been interpreted to prohibit the application of
                           a law that increases the primary penalty for conduct after its commission.
                           For our analysis, we used DOJ’s guidelines in determining whether an
                           offender was or was not subject to MVRA’s provisions.

                           While the overall percentage of offenders ordered to pay restitution
                           declined, our multivariate statistical analysis showed the following
                           inconsistent results across the three types of offenses we analyzed:

                         • The likelihood of an offender’s being ordered to pay restitution for a
                           larceny offense decreased by almost half;

                         • The likelihood of an offender’s being ordered to pay restitution for a
                           robbery offense increased by almost half; and

                         • The likelihood of an offender’s being ordered to pay restitution for a fraud
                           offense decreased slightly.

                           In discussing our results, some court officials and prosecutors said that it
                           was still too early to assess the full impact of MVRA. Some officials
                           commented that time was needed to become familiar with and implement
                           MVRA, especially on the part of the Assistant U.S. Attorneys who
                           prosecute cases covered by MVRA. Prosecutors in one district
                           acknowledged that they were not yet fully implementing the law. In their
                           written responses to a draft of our report, both the Executive Office of the
                           U.S. Attorneys and USSC cited training efforts planned for court officials
                           and prosecutors on MVRA. DOJ, in their comments, acknowledged that,




                           Page 4                                                                GAO/T-GGD-99-95
              Statement
              Federal Courts: Differences Exist in Ordering Fines and Restitution




              while a number of steps have been taken, more remains to be done to
              increase the number of cases in which restitution is imposed.

              Although we selected larceny, fraud, and robbery because of the likelihood
              of a victim’s being due restitution, a substantial percentage of offenders—
              about one-third to two-thirds of offenders sentenced—were still not
              ordered to pay restitution, even when their crimes were committed after
              MVRA became effective. Court officials and prosecutors provided some
              reasons why restitution might not have been ordered in these cases. In
              some cases, stolen money or assets might have been recovered. In other
              cases, an offender might have paid the restitution prior to sentencing,
              removing the need for a restitution order. Another reason cited by officials
              was that the offense might have been an attempted fraud or attempted
              robbery for which the offender was arrested prior to obtaining money from
              the victim. Some officials also cited an exception to MVRA in ordering
              mandatory restitution, such as in cases where the number of victims is so
              large that it makes paying restitution impracticable. One district had a
              number of telemarketing schemes in which large numbers of victims were
              defrauded of small amounts. It was not practical to identify all victims and
              obtain restitution for them.

              Although offender characteristics, type of offense, and the nature of the
Conclusions   sentence played a role, the judicial circuit or district where an offender
              was sentenced was a major factor in determining the likelihood of an
              offender’s being ordered to pay a fine or restitution during fiscal year 1997.
              This variation among judicial circuits and districts occurred overall for all
              federal offenders sentenced under sentencing guidelines during that year;
              and, although occurring less, this variation persisted when we performed
              multivariate statistical analyses for federal offenders sentenced under
              sentencing guidelines for four types of offenses. The large statistical
              variation among circuits and districts raises a question, on a broad level,
              about whether the goal of uniformity in the imposition of fines and
              restitution is being met. Under current conditions, offenders could be
              much more likely in some jurisdictions than in others to be ordered to pay
              a fine or restitution for the same type of crime.

              Although MVRA was intended to eliminate much of the discretion judges
              previously had in waiving restitution for certain types of crime, the overall
              percentages of offenders ordered to pay restitution has declined. Of the
              three offenses we analyzed, the percentages of robbery offenders ordered
              to pay restitution increased, while the percentages of larceny and fraud
              offenders decreased. However, there may be mitigating circumstances,




              Page 5                                                                GAO/T-GGD-99-95
Statement
Federal Courts: Differences Exist in Ordering Fines and Restitution




such as recovery of stolen money that help explain why restitution was not
ordered in a particular case.

This concludes my prepared statement, Mr. Chairman. I would be pleased
to answer any questions you or other Members of the Subcommittee may
have.




Page 6                                                                GAO/T-GGD-99-95
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