<DOC>
[109th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:28198.wais]
CRIMINAL RESTITUTION IMPROVEMENT
ACT OF 2006
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
ON
H.R. 5673
__________
JUNE 13, 2006
__________
Serial No. 109-116
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
______
U.S. GOVERNMENT PRINTING OFFICE
28-198 WASHINGTON : 2006
_____________________________________________________________________________
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah MAXINE WATERS, California
SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida
MARK GREEN, Wisconsin ANTHONY D. WEINER, New York
RIC KELLER, Florida ADAM B. SCHIFF, California
DARRELL ISSA, California LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Philip G. Kiko, General Counsel-Chief of Staff
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on Crime, Terrorism, and Homeland Security
HOWARD COBLE, North Carolina, Chairman
DANIEL E. LUNGREN, California ROBERT C. SCOTT, Virginia
MARK GREEN, Wisconsin SHEILA JACKSON LEE, Texas
TOM FEENEY, Florida MAXINE WATERS, California
STEVE CHABOT, Ohio MARTIN T. MEEHAN, Massachusetts
RIC KELLER, Florida WILLIAM D. DELAHUNT, Massachusetts
JEFF FLAKE, Arizona ANTHONY D. WEINER, New York
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
LOUIE GOHMERT, Texas
Michael Volkov, Chief Counsel
David Brink, Counsel
Caroline Lynch, Counsel
Jason Cervenak, Full Committee Counsel
Bobby Vassar, Minority Counsel
C O N T E N T S
----------
JUNE 13, 2006
OPENING STATEMENT
Page
The Honorable Howard Coble, a Representative in Congress from the
State of North Carolina, and Chairman, Subcommittee on Crime,
Terrorism, and Homeland Security............................... 1
The Honorable Robert C. Scott, a Representative in Congress from
the State of Virginia, and Ranking Member, Subcommittee on
Crime, Terrorism, and Homeland Security........................ 1
The Honorable Steve Chabot, a Representative in Congress from the
State of Ohio, and Member, Subcommittee on the Constitution.... 3
WITNESSES
Mr. Douglas Beloof, Director, National Crime Victim Law
Institute, Lewis and Clark Law School
Oral Testimony................................................. 6
Prepared Statement............................................. 7
Mr. Daniel Levey, President, Parents of Murdered Children, Inc.
Oral Testimony................................................. 10
Prepared Statement............................................. 12
Mr. James Felman, Partner, Kynes, Markman & Felman, P.A. and Co-
Chair, Committee on Corrections and Sentencing
Oral Testimony................................................. 23
Prepared Statement............................................. 25
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Robert C. Scott, a
Representative in Congress from the State of Virginia, and
Ranking Member, Subcommittee on Crime, Terrorism, and Homeland
Security....................................................... 58
Prepared Statement of the Honorable Shelia Jackson Lee, a
Representative in Congress from the State of Texas............. 60
Prepared Statement of the Honorable Steve Chabot, a
Representative in Congress from the State of Ohio.............. 64
CRIMINAL RESTITUTION IMPROVEMENT
ACT OF 2006
----------
TUESDAY, JUNE 13, 2006
House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to call, at 9:30 a.m., in
Room 2141, Rayburn House Office Building, the Honorable Howard
Coble (Chairman of the Subcommittee) presiding.
Mr. Coble. Good morning, ladies and gentlemen. We welcome
you to this important hearing before the Subcommittee on Crime,
Terrorism, and Homeland Security to examine the Criminal
Restitution Improvement Act of 2006 introduced by the
distinguished gentleman from Ohio, our colleague and Member,
Mr. Chabot.
As a strong proponent of victims rights, I'm troubled by
recent reports indicating that a large percentage of
restitution is uncollected. Restitution, it seems to me, plays
a critical role in the deterrence and rehabilitation of
offenders by encouraging them to compensate their victims; yet
restitution remains one of the most under-enforced victims
rights within the criminal justice system.
Crime victims suffer not only physical and emotional
trauma, but financial loss as well. The Justice Department
estimates the tangible cost of crime, including medical
expenses, lost wages and victim assistance, to be approximately
$105 billion a year; unfortunately, most of this is not
collected.
Between 1996 and 2002, the amount of outstanding criminal
debt more than quadrupled, from roughly 6 billion to almost $25
billion. The Criminal Restitution Improvement Act before us
today enhances the Federal restitution system by providing
additional tools to the Government, probation department, and
the courts to assist with collection of outstanding
restitution.
I commend Mr. Chabot--and I think he'll be with us
subsequently--for his dedication to crime victims and his hard
work on this legislation. And I note for the record that the
Justice Department has indicated its support for this
legislation.
I look forward to hearing from our witnesses today. And now
I'm pleased to recognize the distinguished gentleman from
Virginia, the Ranking Member of this Subcommittee, Mr. Bobby
Scott.
Mr. Scott. Thank you, Mr. Chairman. I'm pleased to join you
in convening the hearing on the Criminal Restitution
Improvement Act of 2006. We need to see, however, if this bill
will actually increase restitution, as the name implies.
Restitution is already mandated in most instances of victim
loss in Federal criminal cases. As the GAO reported in its 2001
study on the issue, the Mandatory Victims Restitution Act of
1996, requiring the court to order full restitution to each
victim in the full amount of each victim's losses without
regard of the offender's economic situation, has not resulted
in significantly more restitution being collected, but only in
a dramatic increase in the balance of reported uncollected
criminal debt. The fact is the vast majority of criminal
defendants are indigent, requiring the appointment of a public
defender to represent them.
At the same time, the GAO report indicated that even in the
few cases where the defendant does have some assets, it is
difficult to collect restitution noting that, quote, ``criminal
defendants may be incarcerated or deported, with little earning
capacity.'' They often spend money on attorneys who are paid up
front. Their assets, acquired through criminal activity, may be
seized by the Government prior to conviction; thus, by the time
fines and restitution are assessed, offenders may have no
assets left for making payments and restitution.
If the vast majority of offenders are broke when they come
to prison, going out and trying to find a job with a felony
conviction is not likely to improve their ability to have money
to meet their own needs to survive, and the survival of their
dependents, and pay restitution.
Everyone is in favor of more victim restitution; however,
tying it to the false hope of squeezing more restitution out of
destitute prisoners is not likely to result in the collection
of more restitution, but only increasing the frustration of
victims, offenders, and the criminal justice system in general.
There is an old English saying that you can't squeeze blood
out of a turnip. Mandating restitution in even more cases where
it makes no sense, and insisting on collection efforts possibly
for the life of the offender upon his or her release, will not
result in more restitution being collected but only in more
frustration, additional unproductive costs, financial or
otherwise, for all involved.
It certainly has been my observation that restitution works
best when it is an alternative to incarceration and the loss of
employment and assets that accompany such incarceration. Even
more dramatically but realistically, placing more emphasis on
mandating restitution where it makes no sense than the system
already does may actually result in more failures of offenders
to succeed upon their return, which we know will likely result
in more victimizations.
As you know, Mr. Chairman, our counsels are working
diligently on developing a comprehensive prisoner reentry
program to reduce the tragic reality that more than two-thirds
of the released offenders end up back in prison within 3 years
of release. Clearly mandating more restitution where it doesn't
make any sense will even make that effort more difficult.
Ironically, one program that does allow a modicum of
restitution to be paid by prisoners, about $3 million a year,
the Federal Prison Industries Program, is under siege in the
Judiciary Committee in Congress, and it's been substantially
reduced in terms of the number of inmates participating, and
could be eliminated if some have their way.
We're all in favor of victim restitution actually being
paid to victims; however, I do not believe, Mr. Chairman, that
we should condition the payment of more victim restitution on
the false hope of mandating more of it from a destitute group
of offenders at the cost of more frustration and unproductive
effort for all concerned. Instead, I believe we should bite the
bullet, establish a victims restitution fund from Federal
appropriations, and that way victim restitution is neither
dependent upon the vagaries of the offender's ability to pay or
the Government's collection efforts.
We should then refocus the Federal victim restitution
collection efforts on areas where it will have more impact,
such as going after the assets of white collar offenders who
profit handsomely from their crimes and have a means of paying.
In a rare instance where money can be collected from
restitution that has been paid to victims, the additional
collections can also be paid to him or her.
I look forward to the testimony of our witnesses, and on
the issue of more mandating victim restitution and working with
you, Mr. Chairman, on developing ways where we can actually
ensure more restitution rather than creating false hope that
may be provided by this bill.
Thank you, Mr. Chairman.
Mr. Coble. I thank the gentleman from Virginia.
Mr. Coble. We normally restrict opening statements to the
Chairman and the Ranking Member, but the primary sponsor of
this bill has requested time to briefly give an opening
statement. And I recognize the distinguished gentleman from
Ohio, Mr. Chabot. But meanwhile, we have been joined as well by
the distinguished gentleman from Massachusetts, Mr. Delahunt.
Good to have you here, Bill.
Mr. Chabot.
Mr. Chabot. Thank you, Mr. Chairman.
I want to thank you, Mr. Chairman, for holding this hearing
on this important issue. The treatment of crime victims is an
area that I felt for a long time deserves more attention and,
unfortunately, is too often overlooked in the criminal justice
system.
I want to also say that I agree with one of the things that
the Ranking Member mentioned about Federal prison industries. I
think that it is an area that is under some assault right now,
and I think we have to be very careful in how we move forward
with that, because putting prisoners to work, I think, is good
for them, it's good for the public, it's good for maintaining
control at the prisons. And any effort which would undermine
that, I think, would be a mistake. We find that rates of
recidivism, for example, are improved when prisoners have a
skill, because most of these folks are going to be coming out
someday. So I want to thank the distinguished Member who didn't
hear what I said, but I commended him on his----
Mr. Scott. I was listening.
Mr. Chabot. I was saying something nice about you.
Mr. Scott. I heard about prison industries.
Mr. Chabot. So--thank you.
And secondly, last year a number of us worked on the
Justice for All Act, and I was very pleased that that
particular piece of legislation did pass and that we were able
to include in there protections for crime victims.
And I had originally been working for years on trying to
pass a restitutional amendment for victims rights, but this
bill, although it was statutory, I think does go in the right
direction and it provides crime victims with what in essence is
a bill of rights to truly provide crime victims with dignity
and respect during an established and enforceable set of
rights.
This year I'd like to continue the progress that Congress
has made, and on the 10th anniversary of the Federal Mandatory
Victims Restitution Act of 1996, I want to increase the
collective efforts and enact policies to help law enforcement
make victims whole.
This week, I plan to introduce the Restitution Improvement
Act of 2006, the hallmark of the bill being that restitution
will be mandatory for all offenses with an identifiable victim
suffering a pecuniary loss. Additional highlights include
awarding restitution for all identifiable persons or entities,
awarding attorneys fees associated with the collection of
restitution, enhanced notification by probation officers of
victims loss, and informing victims of the provisions in the
presentence report that assess the ability of the defendant to
pay restitution, that prohibit early termination of supervised
release when a defendant has an outstanding restitution
balance, and would allow for the extension of the supervised
release for the limited purposes of collecting restitution,
would require that restitution is due immediately instead of
automatically establishing a payment plan.
Defendants are jointly and severally liable for the total
amount of victims loss. It would allow the Government to seek
restitution from the defendant above the payment schedule when
the Government discovers unreported assets.
And finally, it amends the Son of Sam law, the law that
prohibits criminals from profiting from their crime. So it
would withstand further judicial review in accordance with the
Schuster case.
Restoring crime victims to the position they were in as
much as possible before the crime--otherwise known as
restitution--is beneficial to both the victim and to the
offender. Studies have shown that criminals who paid a higher
percentage of their ordered restitution have lower recidivism
rates. Most importantly, the loss crime victims experience must
be publicly recognized by our criminal justice system. This
recognition helps victims heal emotionally. Financially these
victims are owed compensation to move forward with their life.
For example, at the Federal level, some of the most prevalent
fraud cases involve the elderly, and it's essential that we
recover restitution for some of society's most vulnerable
citizens, our elderly, who oftentimes have lost a lifetime
worth of savings.
The way crime victims are treated within the criminal
justice system is of paramount importance. This legislation
will help to decrease the $40 billion criminal debt balance
that is owed to victims. So $40 billion has been ordered to be
made in restitution which has gone unpaid, and it will improve
the approximately 87 percent of restitution that currently goes
uncollected every year. So 87 percent goes uncollected.
I look forward to hearing from our panel of witnesses, and
want to publicly recognize and thank Daniel Levey, who is
representing the Parents of Murdered Children, who happen to be
headquartered in my district in Cincinnati, and I had the
opportunity to tour that recently. So thank you, and thank all
the witnesses.
Mr. Coble. Mr. Chabot, since Mr. Scott was listening, I'm
pleased that you were not slandering his good name earlier----
Mr. Chabot. Not today.
Mr. Coble. You said good things about him.
Gentlemen, it is the practice of the Subcommittee to swear
in all witnesses appearing before it. So if you will also
please stand and raise your right hands.
[Witnesses sworn.]
Mr. Coble. Let the record show that each of the witnesses
answered in the affirmative.
We have three distinguished witnesses with us today. Our
first witness, Mr. Douglas Beloof, is Executive Director of the
National Crime Victim Law Institute at Lewis and Clark College.
Professor Beloof has written the only case book on the subject
of crime victim law, entitled ``Victims in Criminal
Procedure,'' which won a national award for writing in
Victimology and the Law. He has served as a prosecutor and a
criminal defense attorney, as well as practiced torte law as a
plaintiff's and defense attorney, and has written amicus briefs
to appellate courts nationwide.
Professor Beloof received his undergraduate degree from the
University of California at Berkeley, and his JD from the
Northwestern School of Law at Lewis and Clark College. And
that's in Portland, is it not, Professor?
Mr. Beloof. Yes, sir.
Mr. Coble. Our second witness is Daniel Levey, President of
the National Organization of Parents of Murdered Children. Mr.
Levey has been a tireless advocate for victims rights, having
experienced firsthand the suffering of victims' families after
the senseless murder of his brother in November 1996. He is on
the Board of Directors of the National Organization For Victim
Assistance, is a founding member of the Arizona Voice for Crime
Victims, and actively participates in numerous other victims
rights associations. Additionally, Mr. Levey serves as Adviser
to the Governor for Victims and as an administrator with the
Arizona Department of Corrections Office of Victims Services.
Mr. Levey holds a bachelor's degree in administration of
justice from the Arizona State University and a master's degree
in educational leadership from Northern Arizona University--at
Flagstaff, I presume, Mr. Levey.
Our third witness is Mr. James Felman, partner at Kynes,
Markman & Felman, P.A. Mr. Felman currently cochairs the
American Bar Association's Committee on Correction and
Sentencing, and served as President of the Tampa Bay Chapter of
the Federal Bar Association. He is also a member of the
Sentencing Initiative of the Constitution Project. Mr. Felman
is the author of various numerous publications on the issue of
sentencing. He received a bachelor's degree in history from
Wake Forest University, and both a master's in philosophy and a
JD from Duke University. Glad to see the North Carolina
connection, Mr. Felman.
Gentlemen, we operate under the 5-minute rule, as you all
have previously been told. So when you see the amber light
appear before you in the panel on your table, that is your
warning to prepare to wrap it up. When the red light appears,
of course, the 5 minutes have elapsed. So if you can confine
your statements to on or about 5 minutes, it will be
appreciated.
And, Mr. Beloof, we will start with you.
TESTIMONY OF DOUGLAS BELOOF, DIRECTOR, NATIONAL CRIME VICTIM
LAW INSTITUTE, LEWIS AND CLARK LAW SCHOOL
Mr. Beloof. Thank you for the opportunity to testify, Mr.
Chair and honorable Committee Members. I'm here to testify in
support of the Criminal Restitution Improvements Act of 2006,
which cleans up and improves the Crime Victims Restitution Act
of 1996.
My name is Doug Beloof, I'm a law professor, and I direct
the National Crime Victim Law Institute, which is a national
law organization founded to support crime victim lawyers around
the country.
Mandatory restitution and procedures that maximize the
potential for collection of restitution are among the most
critical laws for crime victims. Of course, receiving some
recompense for the victim's loss resulting from the criminal
harm is important and should not be understated. It would,
however, be shortsighted to view this as the only purpose of
restitution. More than any other condition of sentencing,
restitution comes the closest to being personal to the victim.
It is also of great significance for the victim to have the
judge presiding over the sentence acknowledge, as the
representative of the Government, that the victim has in fact
been financially harmed and to have the convict who
intentionally inflicted the harm be held in judgment for the
full amount of restitution.
For victims, this is a critical affirmation, a moment when
the criminal justice system stands by the victim. In mandatory
and full restitution, the message is sent to the victim that
the victim's loss is officially recognized and that
responsibility for that loss is squarely placed where it
belongs: on the convict.
To be sure, it is improbable that many or maybe even most
victims of crime will receive full and complete restitution
from their offender. However, this point should not detract
from the other important functions of full and mandatory
restitution or from the effort to obtain that full and complete
restitution from the offender.
The ordering of full and mandatory restitution also serves
important penalogical functions. For the first time, the
defendant is confronted with the reality of the financial
devastation he has wrought. Less than mandatory and full
restitution sends the message that crimes can be committed for
pennies on the dollar. When a judge orders restitution, the
message to the offender and to the victim--or when a judge
orders reduced restitution--excuse me--the message to the
offender and the victim is that the court does not care enough
about the victim's harm to acknowledge the full extent of the
defendant's responsibility.
Moreover, in standing by the victim after the conviction of
the defendant by ordering full and complete restitution, it is
important, to the extent practically possible, that mandatory
restitution laws are drafted to facilitate the ordering and
collection of comprehensive restitution. This maximizes the
possibility of recovery. For these and other reasons, I
strongly support the Criminal Restitution Improvements Act of
2006.
The central judicial objection to the original legislation
underlying this bill, the Crime Victim Restitution Act of 1996,
was the fear that the sky would fall upon the judiciary because
that legislation would transform Federal courts into collection
agencies. Of course, experience after the bill's enactment has
shown that the sky has not fallen. Federal courts have not been
overwhelmed with restitution matters. Nevertheless, the present
act laudably seeks to reduce the restitution burden upon the
courts by facilitating the collection of restitution by
executive and administrative agencies.
The judicial conference testimony in 1995 was concerned
that the length and complicated nature of assessing the harm,
such as mail fraud schemes which can involve multitudes of
victims, would be difficult for the courts to meet. The present
act seeks to mitigate that judicial concern significantly. If
there are substantial practical problems in ordering
restitution, under this improvement act the courts are only
required to order restitution to the best of their ability.
Misdemeanor case disposition by the court can potentially
be streamlined as legislation provides that restitution may be
ordered in lieu of any other penalty.
Moreover, as communications between various Government
agencies are improved under the act, ultimately these improved
communications will facilitate the court's restitution tasks.
To be sure, the provisions that supervised release ends
only after restitution obligations are met would have the
potential to increase the supervision responsibilities of
courts, except that the bill dramatically limits the function
of that ongoing supervision simply to compliance with the
restitution order. It is fitting and proper to hold defendants
accountable in this way, nor does it impose an impossible
burden upon them.
Mr. Coble. If you will suspend just a moment. The panel on
your table is malfunctioning. So what I may do, folks, I may
just tap when the amber light--but you can go ahead and wrap
up, Mr. Beloof.
Mr. Beloof. Thank you, sir, very much.
The Supreme Court has held that incarceration is not
available for sanctioning failure to pay if the reason for
nonpayment is indigence. Thus, defendants are sheltered from
failure to meet payment schedules where it is impractical to do
so.
Thank you, Mr. Chairman.
Mr. Coble. Thank you, Mr. Beloof.
[The prepared statement of Mr. Beloof follows:]
Prepared Statement of Professor Douglas E. Beloof
Mr. Chair and Honorable Committee Members,
Thank you for the opportunity to testify in support of the
``Criminal Restitution Improvements Act of 2006.'' My name is Douglas
E. Beloof. I am a law professor at Lewis & Clark Law School and the
Director of the National Crime Victim Law Institute.
Mandatory restitution and procedures that maximize the potential
for collection of restitution are among the most critical laws for
crime victims. Of course, receiving some recompense for the victims'
losses resulting from the criminal harm is important. However, it would
be shortsighted to view this as the only purpose of restitution. More
than any other condition of sentencing, restitution comes closest to
being personal to the victim. It is also of great significance for a
victim to have the judge presiding over the sentencing acknowledge that
the victim has in fact been financially harmed and to have the convict
who inflicted the harm be held in judgment for the full amount of
restitution.
For victims, this order is a critical affirmation--a moment when
the criminal justice system stands by the victim. In mandatory and full
restitution, the message is sent to the victim that the victim's loss
is officially recognized and that responsibility for that loss is
squarely placed where it belongs. To be sure, it is improbable that
many or even most victims of crime will receive full restitution from
their offender. However, this point should not detract from these other
important functions of full and mandatory restitution.
The ordering of full and mandatory restitution serves an important
penological function as well. For the first time, the defendant is
confronted with the reality of the financial devastation he has
wrought. Less than mandatory and full restitution sends the message
that crimes can be committed for pennies on the dollar. When a judge
orders reduced restitution, the message to the offender (and the
victim) is that the court does not care enough about the victims' harm
to acknowledge the full extent of the defendant's responsibility.
Moreover, in standing by the victim after the conviction of the
defendant by ordering full and complete restitution, it is important
that, to the extent practically possible, mandatory restitution laws
are drafted to facilitate the ordering and collection of comprehensive
restitution. This maximizes the possibility of some recovery.
For these, and other, reasons I strongly support the ``Criminal
Restitution Improvements Act of 2006.''
The central judicial objection to the original legislation
underlying this bill (The ``Crime Victim Restitution Act of 1995'') was
the fear that the sky would fall in on the judiciary because that
legislation would ``transform federal courts into `collection
agencies.' '' Judicial Conference of the United States, Statement of
Judge Marianne Trump Barry, Committee on the Judiciary, United States
Senate on S. 173 The Crime Victims Restitution Act of 1995. November 8,
1995, at page 10. (hereinafter Judicial Conference Testimony). Of
course, experience after the bill's enactment has shown that the sky
has not fallen. Federal Courts have not been overwhelmed with
restitution matters. Nevertheless, the present Act laudably seeks to
reduce the restitution burden upon the courts, by facilitating the
collection of restitution by executive and administrative agencies.
The Judicial Conference testimony in 1995 was concerned that ``the
length and complicated nature of assessing the harm, such as mail fraud
schemes, which can involve multitudes of victims, can be staggering,
and quantifying the emotional damage or loss will be extraordinarily
difficult.'' Judicial Conference Testimony, at Page 9. The present Act
mitigates that concern significantly. If there are substantial
practical problems in ordering restitution, under the Improvement act
courts are only require to order restitution ``to the best of their
ability.'' 3663(E).
Misdemeanor case disposition can potentially be streamlined by the
Courts as the legislation provides that ``restitution may be ordered in
lieu of any other penalty.''
Communications between various government agencies are improved
under the act. ``The prosecutor must provide the probation officer with
any information regarding restitution. Sec. 3664(C). In turn the
Probation officer is more succinctly directed to include restitution in
the pre-sentence report. Ultimately, these improved communications will
facilitate the Courts' restitution tasks.
To be sure, the provisions that supervised release ends only after
restitution obligations are met would have the potential to
considerably increase the supervision responsibilities of the Courts,
except that the bill dramatically limits the function of that ongoing
supervision to compliance with the restitution order. Sec. 3664(m) &
Section. 4. It is fitting and proper to hold defendants accountable in
this way. Nor does it impose some impossible burden upon them. The
Supreme Court has held that incarceration is not available for
sanctioning failure to pay if the reason for non-payment is indigence.
Thus, defendants are sheltered from failure to meet payment schedules
where it is impractical to do so. Moreover, such ongoing responsibility
of the defendant brings restitution procedures into conformity with the
intent of Congress expressed in prohibiting the discharge of criminal
restitution in bankruptcy courts. In essence, this Act achieves similar
public policy goals.
The Courts fears that mandatory restitution would overwhelm the
Courts has never been realized. The modest changes to the mandatory
restitution law included in this Restitution Improvement Act, improve,
rather than diminish the efficiency of the earlier Act.
Moreover, to prioritize concerns that the collection process may
overburden government, is a mis-prioritization of fundamental values.
The only other alternative to government responsibility would be to
place the burden of obtaining a judgment of restitution and collection
of restitution upon the victim. This is an unacceptable alternative.
Congress recently passed by overwhelming votes the ``Crime Victims
Rights Act.'' 18 U.S.C. 3771. A fundamental principle of providing
victims' rights is that, to the extent possible, victims should not be
harmed by either government processes or the failure of government to
provide process. This Act, the Restitution Improvement Act of 2006,
like the Crime Victims' Restitution Act of 1995, embodies the proper
prioritization of values. The Act continues in the tradition of the
1995 Act by correctly prioritizing victims of crime and de-prioritizing
government inconvenience and accommodations to the criminal convict who
intentionally inflicted the loss.
The Act also increases the scope of restitution by providing for
mandatory restitution for all federal offenses. This is a particularly
important improvement. On the one hand, to grant a victim of crime
``A'' restitution, while, on the other hand denying restitution to the
victim of crime ``B,'' is simply untenable. Such discrimination is
ultimately based on random circumstances beyond the victim's control.
Moreover, inclusion of all victims under restitution laws is consistent
with the CVRA, which grants all victims of crime rights. The CVRA
defines victims as, ``a person directly and proximately harmed as a
result of the commission of a Federal offense . . .'' 18 U.S.C.
3771(e). The CVRA goes on to provide that ``a crime victim has the
following rights: . . . the right to full and timely restitution as
provided by law. 18 U.S.C. 3771(a)(6). Expanding the scope of
restitution under the Restitution Act of 1995 eliminates existing
conflicts with the recently enacted CVRA.
In closing, may I suggest that there are a few ways in which the
bill can be improved.
First and foremost, I strongly concur with the suggestion by the
United States Department of Justice that provides for preservation of
defendants' assets. See Letter to the Honorable Dennis Hastert,
Speaker, from William Mochschella, Asst. Attorney General (May 25,
2006) Under current law there are no statutory provisions that require
a defendant charged with crime to preserve his assets for restitution.
Prosecutors have no way to preserve these assets, even if they are
proceeds from the crime itself. The effective collection of restitution
is substantially impaired as a result. See Criminal Debt: Court Ordered
Restitution Amounts far Exceed Likely Collections For Crime Victims in
Selected Financial Fraud Cases, GAO-05-80. (January 2005). Ironically,
it is easier to protect assets in a civil suit than a criminal action.
See, Federal Debt Collections Procedures Act of 1990, 28 U.S.C. et Seq.
Preservation of assets is already possible in criminal forfeiture
cases. 21 U.S.C. Sec. 853(e)(1).
Second, until restitution is met, victims should be able to claim
the criminal loss as a loss to the I.R.S. I recently had an tax
attorney call me and identify that the IRS was denying a loss claim
because restitution had been ordered, even though there was no actual
recovery. I expect it was never the intent of Congress, in providing
for restitution, to give the I.R.S. a rationale for denying a tax loss
deduction where restitution had not been forthcoming. This problem will
only get worse if not corrected, because now restitution orders will
exist until they are met by the defendant. In other words, a victim
might never be able to claim the loss.
Third, courts need the discretion to order restitution for a broad
array of losses. I suggest that 3663(C) include language such as: ``In
the discretion of the court, restitution may include any amount for any
loss that restores the person, entity or estate to the position that
would have existed had the defendant not committed the crime.''
Fourth, The Act refers to loss to all identifiable ``parties.'' The
word ``parties'' is a term of art referring to the prosecution and
defense. This could be a source of confusion. Better language is ``each
identifiable person, entity or estate.''
In conclusion, the Restitution Improvements Act of 2006 is a solid
bill and I wholeheartedly support it.
Thank you for the opportunity to appear before you today.
Mr. Coble. Mr. Levey.
TESTIMONY OF DANIEL LEVEY, PRESIDENT, PARENTS OF MURDERED
CHILDREN, INC.
Mr. Levey. Good morning, Mr. Chairman and distinguished
Members of the Subcommittee. My name is Dan Levey, and I come
before you as the current National President for Parents of
Murdered Children, which is also for the friends and family of
those that have died by violence.
I am pleased to be here on behalf of POMC to give input on
this important piece of Federal legislation. I would like to
acknowledge and thank Ohio Representative Steve Chabot, who has
been a longtime supporter of victims rights and of Parents of
Murdered Children. It is no surprise that Representative Chabot
is a sponsor of this important piece of Federal legislation
which aims to improve the collection enforcement of restitution
for victims of Federal crimes.
I am also the Adviser for Victims to Arizona Governor Janet
Napolitano, which I'm proud to say is the first position of its
kind in any Governor's office in the Nation. And I'm the
current National Vice President of Administration for the
National Organization for Victim Assistance, which is based
here in Washington, D.C.
However, my most important credential is one I'd rather not
have. I lost a loved one to murder. In the early morning hours
of November 3, 1996, my life as I knew it changed forever. Like
so many victims who receive a phone call or a knock on the door
with news that fundamentally alters their existence, my sister-
in-law called to tell me that my brother, Howard, had been shot
while waiting for his friends to show up for their weekly
morning basketball game. My brother was a well-educated
husband, father, son, and brother and friend to many. Howard
was shot by two gang members at point-blank range, thrown out
of his car and left to die. I learned firsthand the harsh
reality of what it's like to have a loved one murdered, and
have since dedicated my life's work in memory of my beloved
brother.
It is with this experience and background that I come
before you to speak on the importance of this piece of
legislation.
Parents of Murdered Children, by way of background, was
founded by Charlotte and Rob Hullinger in 1978 in Cincinnati,
Ohio, 3 months after their daughter Lisa was murdered. POMC is
headquartered in Cincinnati, Ohio, and is the only national
self-help organization designed solely to offer emotional
support and information about surviving the murder of a loved
one. And POMC has grown from a small organization in the
Hullinger's basement to a national organization with over 60
chapters throughout the United States, Canada, and Puerto Rico
and provides support to over 100,000 survivors each year.
Restitution is the fundamental need of crime victims. Its
importance for victims with respect to financial as well as
psychological recovery from the aftermath of crime cannot be
overstated. Being a victim of crime, especially a violent
crime, leaves a devastating impact on victims who cannot put a
price tag on human life, and there are no financial
remunerations that can ever replace what victims have lost.
However, restitution holds offenders accountable, and, when
paid, helps offset the economic loss experienced by the victim
who is left with medical bills, funeral costs and other
expenses. In some cases a murder takes away the primary
breadwinner, leaving no way to even pay rent.
Restitution is critical to crime victims because it assists
them in recovering the economic losses that resulted from
criminally injurious conduct. It's a vital part of the criminal
justice system because it offers victims a sense of justice and
holds offenders accountable.
Payment of restitution promotes the active participation of
offenders and victims in the justice process. It shifts the
focus of justice system interventions and makes them victim-
centered rather than offender-centered. Restitution can be an
important mechanism for helping offenders understand the full
impact of their criminal behavior on victims. The offender
should be held accountable for restoring the victim and the
community as much as possible to their pre-offense economic
condition. Restitution is the primary tool for accomplishing
this goal.
It is for these reasons that 10 years ago Congress passed
the Mandatory Victims Restitution Act. In passing that act,
Congress intended to, quote, ``ensure that the loss to crime
victims is recognized and they receive the restitution they are
due,'' end quote, as well as to ensure the offender realizes
the damage caused by the offense and pays the debt owed to the
victim. This was critical legislation, but we must do more and
better.
The victim is the only person in the entire criminal
justice system process that did not choose to be here, and the
victim is the one with the most at stake. Victims should never
be surprised by a system that is designed to provide them
justice. Issues arising with offender nonpayment or late
payment should be shared with the victim within the confines of
confidentiality.
This Criminal Restitution Improvement Act of 2006 would
provide mandatory restitution for all Federal offenses, which
we support. This is an improvement to current laws; it provides
mandatory restitution for all Federal offenses. The act enables
the victim to obtain restitution for losses incurred as part of
the criminal episode and not just from the convicted offense.
In closing, I'd just like to read a quote that I have on my
office wall, it's from the great Nobel Prize-winning author and
Holocaust survivor Elie Wiesel, who said, ``We must take sides.
Neutrality helps the oppressor, never the victim. Silence
encourages the tormenter, never the tormented.'' It's time that
we are no longer silent when it comes to collection and
enforcement of restitution. Thank you.
Mr. Coble. Thank you, Mr. Levey.
[The prepared statement of Mr. Levey follows:]
Prepared Statement of Daniel Levey
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Mr. Coble. And Mr. Felman, I'm advised now that the panel
is functioning properly, so when the amber light appears,
that's your 1-minute warning. Good to have you, Mr. Felman.
TESTIMONY OF JAMES FELMAN, PARTNER, KYNES, MARKMAN & FELMAN,
P.A. AND CO-CHAIR, COMMITTEE ON CORRECTIONS AND SENTENCING
Mr. Felman. Thank you, Mr. Chairman, Ranking Member Scott,
other distinguished Congressmen, it's an honor to have this
opportunity to speak to you today about this important issue of
restitution.
As a practicing criminal defense attorney in the trenches
of our criminal justice system on a daily basis, I have
concerns about the bill's provisions.
I cannot agree that it is a good idea to expand mandatory
restitution without regard for the defendant's actual ability
to pay it. The bill would needlessly inhibit rehabilitation by
offenders who are attempting to reenter society after often
very lengthy periods of incarceration.
The bill would greatly complicate sentencing proceedings
with the addition of many fact findings, all given that most
defendants are indigent and unable to make the payments anyway
and will not be sufficient to warrant the use of those
resources.
The bill will also result in an inefficient allocation of
other scarce criminal justice resources, as prosecutors are
diverted from their jobs of investigating and prosecuting
crimes to acting as essentially civil collection agents.
Finally, there are at least two aspects to the bill that I
believe are clearly unconstitutional. With respect to mandatory
restitution, it sounds good in theory, but in practice we know
that roughly 85 percent of defendants are indigent before they
get prosecuted, and I would have to assume that a greater
number of that are indigent after they have been prosecuted and
served time in prison. The problem with ordering people to pay
what everyone knows they can't pay is then they simply have no
incentive to try, because they know that they'll never be able
to pay all of their restitution, and so their incentive is to
simply do the bare minimum.
And that's what I see every day. People are like, why
should I go out and get a job that will pay me more money? All
the probation officer is going to let me keep is enough to pay
my bare expenses. My guess would be that mandatory restitution
may result in less victim compensation and not more. I would
certainly love to see that issue studied.
It also inhibits an offender's rehabilitation because, I
agree that it's good for defendants to be able to make
restitution, what's bad for defendants is to be saddled with an
amount of restitution that everyone knows they can never pay.
The two unconstitutional parts of this bill are the
provision that provides for restitution without a conviction.
This bill, for the first time in our Nation's history, would
authorize--would mandate courts to order restitution for
conduct for which the defendant has been neither charged nor
convicted, and perhaps even acquitted.
And I was surprised to see that, because I knew that in
1984 this body, the House of Representatives, put in a report--
it's H.R. Report number 98-1017--quote: ``To order a defendant
to make restitution to the victim for an offense for which the
defendant was not convicted would be to deprive the defendant
of property without due process of law.'' I think it's pretty
clear-cut. It's also just wrong and unfair. You shouldn't be
punished for something you haven't been charged with, or
convicted of.
Lifetime supervision will be routine in virtually every
case now because the bill provides that supervised release and
probation must continue indefinitely until the restitution
obligation that has been ordered without regard to their
ability to pay has been satisfied. Given, as I said, that 85
percent of defendants are indigent, none of them will be able
to ever satisfy their restitution fully. So this bill will
essentially provide for a lifetime supervision of everyone.
That will be an incredible expenditure of resources for very
little benefit, and to the tremendous detriment of the
defendant, again, no incentive to rehabilitate themselves. No
matter what they do, no matter how they behave themselves, they
will be under supervision for life, they'll never really be
free.
It's unconstitutional under Apprendi because right now
there are statutory maximums to the terms of supervised release
and probation. And this bill would allow a judicial fact-
finding of restitution to then expose the defendant and in fact
mandate that the defendant receive a term of supervised release
or probation in excess of the otherwise existing statutory
maximum.
Another unwise aspect of the bill is to expand restitution
to include consequential damages. As any civil practitioner
knows, issues of consequential damages are limited only by the
imagination. And so you'll have issues of attorneys fees. Who
likes litigating attorneys fees issues?
So we're going to now have attorneys fee litigation in
every restitution hearing, we're going to have how much did the
defendant lose from not being at work, what's his salary, how
many days did he really need--the victim, rather--how many days
did he really need to take off work for this? An incredible new
array of fact-finding, all for nothing, because at the end of
all that process nobody's got any money to pay it. So it sounds
great to measure all of these things and to go through all of
that work, but there's no money to pay it.
I also would not approve of mandated joint and several
liability, and I think we should tread very carefully about
disclosing any part of presentence investigation reports, which
is what this bill for the first time would permit. Thank you,
Mr. Chairman.
Mr. Coble. Thank you, Mr. Felman.
[The prepared statement of Mr. Felman follows:]
Prepared Statement of James E. Felman
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Mr. Coble. Thank you all, gentlemen.
Gentlemen, we impose the 5-minute rule against us as well,
so if you all can keep your questions rather tersely.
Mr. Beloof, in your testimony you recommend that the act
include a provision for the preservation of the defendant's
assets. Elaborate a little more in detail on that end, and tell
us why you think this is significant.
Mr. Beloof. Well, of course, it takes many months,
sometimes over a year, for criminal cases to come to
resolution. And during that period of time there is the--the
defendant has the opportunity to disperse their assets.
Preserving their assets makes the probability of restitution
collection much greater.
I know that the Department of Justice has requested this
provision in a letter to the Speaker of the House, and I
strongly support their request for it. This can be--particular
significant sums of assets can be obtained or frozen in white
collar crime cases.
Mr. Coble. I thank you, sir.
Mr. Levey, let me put a two-part question to you.
Based upon your own experience and your interaction with
other crime victims, describe the financial impact of crime,
particularly the victims of violent crime, A. And B, what do
you say when one would say, well, listen, the offender has
already paid his debt to society; don't you think an active
prison sentence is sufficient? Why lean on him for further
restitution?
Mr. Levey. Mr. Chairman, Members of the Committee, the
financial impact of crime, especially of violent crime, in my
experience is obvious, it's devastating, it's not--you know,
crime is not a 1-hour TV show or book that we read. The ripple
effect and the financial impact is endless. And it's not only
the obvious economic loss that the victim suffers, but it's the
things also that aren't covered under restitution as well. So I
would say, while it's a piece of the puzzle, restitution is
very important to crime victims.
And, you know, it's--I think it goes toward the
accountability. And whether they have the means to pay it or
not I think is somewhat moot, because the victim didn't ask to
be in this position, they may not have had the money to lose,
and it was taken from them in one way or another.
And on the other piece, I'm sorry, it was regarding the
offender----
Mr. Coble. Yeah. What do you say--after all, the defendant
has already paid his debt to society, he's served an active
prison sentence, get off his back; why do you want to let him--
I'm just paraphrasing now.
Mr. Levey. Right. Well, I say to that, until they pay the
economic loss--the prison sentence or the probation term is
just one facet of their sentence--they need to complete their
restitution as well. It's not just hollow words on paper that a
judge orders. Victims should be allowed to recoup the economic
loss. And so you haven't paid your debt to society if you've
just done your prison term.
Mr. Coble. Mr. Felman, do your concerns regarding mandatory
restitution remain intact, despite the court's authority, under
the current law and the bill, to establish a payment schedule
or order some sort of nominal periodic payments? Does that give
you any comfort?
Mr. Felman. Not as much as I'd like. Obviously you can
establish a payment schedule and you can order nominal
payments, but the end result is the same. The restitution
obligation will not be satisfied because it does not bear any
relationship to the defendant's ability to satisfy it. What is
the point of ordering a defendant to pay an amount of money
everyone knows they cannot pay? And of course there is always
the argument, well, what if he wins the Lotto? And of course
I'm all in favor of the current law or the law under the bill
where, if the defendant's economic circumstances change, they
must advise the court of that and the court can then adjust the
restitution accordingly. I'm just trying to talk about a policy
that makes sense here. Let's give people a target they can hit.
Mr. Coble. Professor Beloof, how does extending--strike
that--no, I'll proceed with that. How does extending probation
or supervised release improve the process of collection of
restitution?
Mr. Beloof. Well, it improves the process of collecting
restitution because it allows the courts to participate in the
collection--or the criminal courts to participate in the
collection of restitution. The alternative to that is for
victims to pursue the judgment in the courts and puts the
burden on them of collection. So what it does is it makes more
efficient for the victim the collection of restitution.
And I'd like to add one more thing. I think what we're
discussing here or what the fundamental values we're concerned
about are, and I think the fundamental values we're concerned
with here are the values of standing by the crime victim and of
maximizing the opportunity for restitution from them. They are
the people whom an intentional crime was committed against.
Congress has--well, I'll stop there.
Mr. Coble. Well, my red light appears.
I'm pleased to recognize the distinguished gentleman from
Virginia, Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman. And Professor Beloof,
I'd like to follow up on that.
First of all, you mention the fact that under present law
you can't jail someone for nonpayment of something they can't
pay; does this bill change that law?
Mr. Beloof. No, it doesn't change the law of the Supreme
Court, sir.
Mr. Scott. Okay. You also mention maximizing restitution.
What is the likelihood that you'd be able to get any more money
out of people who cannot meet the present standards of
restitution, particularly in light of the fact that almost 90
percent of restitution is not collected now?
Mr. Beloof. Well, it would increase the time period in
which offenders would make minimum restitution payments, so the
answer would be it would improve it.
Mr. Scott. What is the present period under which you have
to make restitution payments? Does the bill change the period
in which you can make restitution--you have to make
restitution?
Mr. Beloof. It changes the period in which courts supervise
the payment of restitution, yes, criminal courts supervise the
payment of restitution; it extends that to the life of the
offender.
Mr. Scott. And what is the present law?
Mr. Beloof. The present law is until supervision ends. The
victim has a judgment that they can continue to enforce after
that supervision is ended.
Mr. Scott. Mr. Felman, you mentioned the Apprendi case, and
I assume the Blakely case would also be implicated. Who makes
the finding of restitution?
Mr. Felman. The judge.
Mr. Scott. And in the bill, it's based on preponderance of
the evidence. What is the present law on setting restitution?
Mr. Felman. It is also the case now that the judge makes
the finding, but it does not violate Apprendi now, because the
way the courts have construed it, there isn't any maximum
amount of restitution. So therefore, whatever amount of
restitution the judge sets does not change the maximum
punishment that the defendant knows he is entitled--he could
get in the absence of that judicial finding.
The reason this bill would violate the Constitution is
because precisely it extends the period of supervised release
and probation beyond the otherwise existing statutory maximum
penalty. So it will increase defendant's punishments above the
otherwise applicable statutory maximum based solely on judicial
fact-finding.
Mr. Scott. And is that the same rationale for the problem
you have with criminal conduct in the same episode that you're
finding--the judge is finding guilt on preponderance of the
evidence that the jury didn't find?
Mr. Felman. It's similar, but also worse. It just simply
runs into the core of fifth amendment due process. The other
concern is the sixth amendment one in terms of your right to a
jury trial. Now we're implicating not just the sixth amendment,
but also the fifth amendment. You're talking about punishing
someone for something they've not been charged with or
convicted of. And I think this body has recognized--and I don't
think it will take courts long to recognize--that that violates
the Constitution.
Mr. Scott. What's wrong with publication of the presentence
report?
Mr. Felman. Well, I think that we want to tread very
carefully there. Right now PSRs are the most sacred document in
our system. In many jurisdictions the defendant himself is not
allowed to have a copy of the PSR. Counsel may review it with
their client, but counsel are typically required not to share
the PSR even among co-counsel; they're often required to return
it at the conclusion of the case. The reason is that we want to
give every protection possible to the contents of that document
so that the judge can get the maximum amount of information
possible. And anytime you're disclosing to third parties and
outside people the information that's in that report, the
quality of the information and the ability to gather the
information will suffer. Right now, no one is entitled to see a
PSR other than the parties. And this bill would for the first
time authorize the release of portions of the PSR--and it's
somewhat vague as to which portions--to third parties, who then
presumably could publish them to the world.
Mr. Scott. The bill provides for pretrial freezing of
assets. What would this to do an ongoing business, the right to
retain counsel, and how much could you freeze?
Mr. Felman. I don't know the answer to any of those
questions. I think it would all have to be litigated and sorted
out. I mean, there's already a right of pretrial restraint of
proceeds of crime, and there are exceptions to that that are
limited for attorneys fees. There sometimes is a bit of a
battle, frankly, between the Government and the victims. I
mean, the Government forfeits--if you want to know where the
money could come from to pay all this restitution, I routinely
see the Government come in and forfeit all the defendant's
assets, and they keep it and the victims get nothing. I think a
fruitful avenue of examination would be where is all the
forfeiture money going?
Mr. Scott. Mr. Beloof, can you address that question, the
pretrial freezing of assets; what would it do to somebody's
ongoing business? Whether it implicates your ability to retain
counsel, and how much could you freeze?
Mr. Beloof. Yeah, I think that the answer is it could
impinge on the ability to do ongoing business, depending upon
whether the business entity itself was indicted. Typically,
individuals are indicted, so it's more likely that it would
infringe on the individual defendant's ability to disperse
their assets. But certainly where a business itself was
indicted, it might affect their ability to conduct business.
Mr. Scott. Mr. Chairman, if I could, if you're self-
employed----
Mr. Beloof. That would affect your ability to do business.
Mr. Scott. Pretrial.
Mr. Beloof. Pretrial after you were indicted.
Mr. Scott. Thank you.
Mr. Coble. I thank the gentleman.
We've been joined by the distinguished lady from Texas, Ms.
Sheila Jackson. Very good to have you with us, Sheila.
The distinguished gentleman from Ohio.
Mr. Chabot. Thank you, Mr. Chairman.
As one whose name gets butchered around this place quite
frequently, Professor, before I do it I've heard several
pronunciations. Could you say your name, please, for me?
Mr. Beloof. It's Beloof, sir----
Mr. Coble. My apologies to you, Professor.
Mr. Beloof. No, you were doing it well, I thought.
Mr. Coble. Thank you for exposing me, Mr. Chabot.
Mr. Chabot. That's all right.
Professor--it's probably easier to just say Professor
anyway--the gentleman, Mr. Felman here, has alleged that this
particular piece of legislation, in his view it's
unconstitutional in several aspects. Could you respond to that?
Mr. Beloof. Yeah. Well, I think, first of all, restitution
without a conviction happens all the time. It's done in plea
bargain settings; defendants agree to pay restitution on
unindicted crimes. And my guess is that this legislation
allows, simply facilitates the ability of courts to order that
restitution. It's stipulated to all the time.
In the narrow question in those cases where it goes to
trial, I expect there might be some issue as to whether the
court could order restitution on a crime for which there wasn't
a conviction. That would be the vast minority of crimes, and I
would expect that this provision would be interpreted to avoid
that small potential constitutional problem.
In terms of lifetime restitution obligation supervision, I
see no constitutional problem with that. You'll be passing a
statute that postdates the probationary terms and other laws,
and courts typically interpret statutes that have the potential
to be in conflict not to have constitutional problems. Since
this will be the most recent statute passed, I suspect that
this statute will prevail over the other statute, and a
constitutional confrontation will not occur.
Mr. Chabot. Thank you. Professor, and Mr. Levey, if I could
ask both of you this, Mr. Felman also made the statement that
he felt that this legislation--if you have somebody in prison,
that there may be a disincentive for them to attempt to pay
anything or to better themselves because they're going to have
this hanging over them their whole lives and they won't be able
to ever pay it off, so why bother? And that's when I saw both
of you writing sort of frantically when that statement was
made.
Mr. Levey, how about if we----
Mr. Levey. Sure. Well, my response, Mr. Chabot, and
Chairman, Members of the Committee, would be that we don't
order restitution just because we think it may or may not get
paid; we pay it for the economic harm that the victim suffered.
We know that the victim lost that money for whatever reason,
and to think that an inmate would not pay because it's too high
of an amount or they don't feel that they're ever going to be
able to pay it off, I think it's about accountability and
responsibility that the inmates should take for their crimes.
And so I think that that's a weak argument that there's not a
likelihood that they'll pay it. I mean, what if they do pay it?
Mr. Chabot. Professor?
Mr. Beloof. Well, it's interesting. You know, if you look
at other policies that Congress has passed, I mean, it's now
virtually impossible for a student who has taken out a loan to
declare bankruptcy. It's curious to me that we would want to
allow an offender to have some equivalent bankruptcy kind of
argument, that is, not be obligated to repay their restitution
when they have committed an intentional criminal act.
So I agree with Mr. Levey, this is about accountability,
it's about prioritizing the interest of victims over the
convenience of Government and over the accommodations of the
criminal defendant. It's really a question of fundamental
values, where you come down on it.
Mr. Chabot. It's also my understanding that about 95
percent of the people that are in prison right now will someday
be out. Many of those will be gainfully employed at some point.
And it's also my understanding that the amounts that are being
paid are about--sometimes well under $100 a month; so they're
not taking all the money, they're taking a portion of it.
Let me conclude. Mr. Levey, a few months ago I happened to
have an opportunity to visit the headquarters of Parents of
Murdered Children, and I was told that this really amazing
group handles as many as a thousand calls a week from family
members that are affected over the loss of a loved one--not
that there's a thousand murders, but there are ongoing cases,
et cetera.
From your personal experience, in addition to your role as
President of Parents of Murdered Children, could you explain
for the Subcommittee both the tangible and intangible loss that
crime victims experience, and how restitution is important to
the healing process of victims and their families?
Mr. Levey. Sure. You know, the intangible things are you
don't have the comfort of your loved one anymore, you don't
have the things that were in your life, and yet you must go on.
And so the emotional strain that crime puts on victims is
oftentimes insurmountable. The prevalence of drug abuse and
alcoholism amongst survivors, divorce, is huge. The intangibles
are a sense of justice and the feeling that someone is going to
be held accountable. I would say that's intangible, you can't
put your hands on it, you can't touch it or feel it, and yet
you're thrust into a system that is often not as swift, severe,
and certain as we learned in our civics class.
And some of the tangible things, the obvious things, are
the person in violent crime, in murder, is no longer with you,
the economic loss. And it's important because whether they can
pay it or not, it's symbolic for many victims to know that
whether they're paying 10 cents a week or whatever it is, that
every time they pay that money, they're thinking about their
crime, hopefully, and thinking about their victim.
And so it's very important that victims hear that
restitution is ordered, one, for the loss that they had. I
mean, to me it would be unconscionable, almost like another
crime if I lost $100,000 as a fraud victim, and yet because the
court felt the likelihood of the defendant paying is not good,
we're going to only order 50,000 at a lower rate. It just
doesn't seem right.
So I guess if I summed it up, you know--there's almost too
much to put your hands around, but I guess if I had to sum it
up I would say that restitution is meaningful in the sense
that, one, it pays for the economic loss; but two, it may be in
many respects it's symbolic that the offender, postconviction
and postsentencing, is going to be thinking about their victim
every time they pay restitution.
Mr. Chabot. Thank you very much.
Mr. Coble. The gentleman's time is expired. The
distinguished gentleman from Massachusetts, Mr. Delahunt.
Mr. Delahunt. Yes, thank you, Mr. Chairman.
Mr. Levey, you're aware, of course, that this particular
legislation in the vast majority of murder cases would not be
applicable.
Mr. Levey. Yes, I'm aware. You know, many murder cases,
they're at the State level----
Mr. Delahunt. Almost all of them are. You know, I mean, to
implicate a murder, a charge of murder, into the Federal courts
is very, very rare.
Mr. Levey. Well, I work closely with our U.S. Attorney's
Office in the District of Arizona, and they handle quite a few
homicides. We have a large Native American population, and
obviously I know you're aware that the Federal crimes that
occur, such as Oklahoma City bombings and others, murder does
happen at the Federal level--not to the degree that the State--
--
Mr. Delahunt. Let me suggest, maybe--I just think it's
important for clarity purposes that--and I'm just going to
throw a number out and either one of the other witnesses can
respond to it, but I daresay that 97, 98 percent of the
homicides in this country are prosecuted at the State level,
and that this particular proposal before us would not apply.
Professor Beloof.
Mr. Beloof. Well, the short answer is that Federal
legislation often establishes a model for the States.
Mr. Delahunt. But that doesn't answer my question, does it,
Professor?
Mr. Beloof. The answer is, I think I have it before me,
2003, 2004, there were 55 murders, Federal jurisdictions.
Mr. Delahunt. And thousands, tragically, of murders in the
State system. I just think it is important to recognize that
point.
Mr. Beloof. Correct.
Mr. Delahunt. Because we don't want to confuse anyone that
may be watching this particular hearing to think that murder
victims would benefit in the overwhelming majority of cases.
That just simply wouldn't happen.
I have a question for Mr. Felman.
Taking that premise that 99 percent of murder cases, most
crimes of violence, this legislation would probably prevail
mostly in white collar crimes; would you agree with that?
Mr. Felman. I think that's correct; most economic crimes
would be the crimes in which restitution would be ordered.
Mr. Delahunt. Would you agree with me that the likelihood
of white collar defendants having the capacity to return into
society and earn a living that would allow them to meet
restitution norms or standards would be a lot more likely than
it would be at the State level?
Mr. Felman. I think that's correct. It depends on what you
mean by restitution norms and standards.
Mr. Delahunt. Well, whatever the court decided.
Mr. Felman. Well, if the court had the discretion to take
into account anything about the defendant or his capacity, then
yes.
Mr. Delahunt. I guess what I'm going to is the changed
economic conditions I daresay are very rarely enforced. And
again, I'm just reading the bill for the first time. But do you
have a problem in terms of post-termination of probation, some
remedy for a crime victim to return into--the Federal court in
this case--and demonstrate to the probation officer, without
going through a lengthy fact-finding, that the defendant who
defrauded the victim of substantial savings is now in a
position to fully compensate the victim?
Mr. Felman. I think that is true under existing law. I
don't think it is related to the period of supervision. I think
3663 A(k) is the part about material change of circumstances,
and it is not tied to the period of release. What I think
victims could benefit from is the ability to reach a settlement
agreement with the defendant. There are circumstances out there
where a defendant is able to borrow money from somebody to pay
off----
Mr. Delahunt. I understand that. What I am saying is there
are far too many sophisticated criminal defendants that know
how to gain the system that leave victims uncompensated,
particularly in the area of economic or white collar crime so
that, you know, a victim is disadvantaged permanently without
really a genuine recourse, because you know Federal probation
departments; they don't take the time. And I am not saying they
don't have the resources to go out and make a determination
that circumstances have changed. And I think that really is
egregious.
Mr. Felman. I think I agree with you. But I think it is
already covered by current law, but settlement agreements are
not permissible. There is no jurisdiction in the district
courts to approve a settlement agreement under current law.
Mr. Delahunt. If it is already covered by current law, that
then goes to the issue--what you are telling me is that under
current law--if I could have an additional 30 seconds.
Mr. Coble. Without objection.
Mr. Delahunt. If, under current law, the enforcement of the
restitution that is ordered by the court survives the
termination of probation----
Mr. Felman. Well, it gets converted to a judgment, and then
the Financial Litigation Unit at the U.S. Attorney's Office is
charged with the enforcement of that. Typically defendants will
enter into a payment agreement on the side that continues the
exact same payments they were making while they were on
supervision.
Mr. Delahunt. Are you aware of any study that has been done
in terms of the enforcement post-probation?
Mr. Felman. No.
Mr. Coble. The gentleman's time has expired.
The Gentlelady from Texas, Ms. Sheila Jackson Lee.
Ms. Jackson Lee. Thank you very much, Mr. Chairman.
I always try to look for the silver lining in some of the
work that we do in this Congress. And frankly, I believe that
some aspects of this initiatives have value to the extent that,
if you have done wrong and harm to victims and the victims'
families, that we should not be sympathetic to how much you can
pay.
But I want to try to be realistic as well. And I will offer
into the record, just by reciting the fact that, pursuant to a
1996 study, victims are impacted in the instance of murder by
$2.9 million, $87,000 for rape and sexual assault, $8,000 for
robbery, $1,400 for burglary and $370 for larceny. So there is
an impact. Mr. Levey, I want to acknowledge and offer sympathy,
in your circumstances being someone who has lived through this.
At the same time, we will note that 87 percent of Federal
restitution is uncollected each year. And, frankly, I think
that we should find a way to seek common ground where reality
sinks in and we try to find solutions to that huge gap. In
fact, I am looking for the number which I think is billions of
dollars, and I will find that shortly.
So I raise these questions, and I would like Mr. Felman to
talk again about his thoughts about the fact that a part of the
legislation in this bill points to defendants that are neither
charged nor convicted. Would you offer your comments on that?
Now remember, people listening are saying, well, you are
dealing with criminals, so why worry about that? They were
around the scene. Somebody thinks they might have been
involved. What is the constitutional issue or any legal issue
that would cause us to pause because of that provision in the
bill? And might I just put on the record that the outstanding
criminal debt since 2001 is probably more. It has ballooned to
$13 billion.
[The prepared statement of Ms. Jackson Lee follows in the
Appendix]
Mr. Felman. Well, I agree with Professor Beloof that in a
circumstance in which it is a part of the plea agreement, that
restitution will be made for conduct not charged and for which
the defendant was not convicted. That will not violate the
Constitution because that is being done with the defendant's
consent.
Ms. Jackson Lee. That is accepted?
Mr. Felman. No question about that. That is in the distinct
minority of cases. Typically speaking, nobody knows what the
restitution is until after the defendant has pled and you are
getting to the sentencing proceeding. That is what is lost, I
think, sometimes. Prosecutors don't have the time to have their
agents go out and figure out what all of the different victims'
losses are before a sentencing hearing. Their job is to convict
this defendant. The restitution will get figured out later.
It is, I think, the rare exception where everyone knows
what the restitution amounts are and they are put in a plea
agreement. And in every case in which--I don't understand the
fascination with punishing people for things they have not been
charged with and have not been convicted of. And it is not like
there is any limit that is available here. We have got
conspiracy law. You charge somebody with a conspiracy. You
convict them of a conspiracy or get them to plead guilty to a
conspiracy. They are liable for all losses caused by any member
of that conspiracy whose act was reasonably foreseeable to them
and was undertaken in the course of the common scheme. It is a
huge web. And if you can't fit your loss into that web, then I
think we need to think again about whether that is something
that we need to be ordering.
Ms. Jackson Lee. In essence, what we are having is a
fishnet out, throwing the fishnet and grabbing anybody who
might have been walking by the crime scene. If we wanted to be
serious about responding to, I think, the eloquence and the
realness of Mr. Levey's situation as he speaks on behalf of
victims, I want them to, one, see the criminal justice system
work on their behalf fairly, and I think restitution is valid.
A provision like this carves away a reasonable bipartisan
perspective which says let's find a way to make sure that $13
billion doesn't sit out there, and let's not have 87 percent of
the restitution not being paid. Getting people who are not
indicted seems to me, Federal or State level, bears on people's
constitutional rights.
I would like to ask Professor Beloof whether or not this
whole idea of continuing to hold people in supervised release
and lack of probation until they pay. Particularly if we note--
I would like to ask an additional minute.
Mr. Coble. Without objection.
Ms. Jackson Lee. Particularly, as we have noted that most
of these people are indigent, have Federal defenders, et
cetera, can we find a better way? And I would like Mr. Felman's
thoughts on that. In addition to restitution, then, what is
happening is, even though a lot of cities were looking to the
forfeiture dollars, we don't get them. I would still like to
know where those forfeiture dollars go. But if you forfeit
property of a defendant, why can't some of those resources be
included as restitution to the victim?
The victim should be made whole. I don't quarrel with that
issue. No one can stand and choose a victim's--whether they
survive the criminal act or whether or not their families have
to live with their death. But this kind of feudal hostage
indentureship certainly, I think, has constitutional problems.
Professor----
Mr. Beloof. I have a----
Ms. Jackson Lee. I would like you to be able to respond
first.
Mr. Beloof. I would agree with you, Representative Lee,
that the payments to victims should be prioritized over fines
or recovery for Government. I do not agree that the extension
of probation to collect restitution is futile. Your comment
that----
Ms. Jackson Lee. Feudal system.
Mr. Beloof. Or feudal, not futile. In a feudal system,
frankly--well, I won't tell you what would have happened.
Ms. Jackson Lee. That is all right. We are close to it.
Mr. Beloof. But you have talked about reality, and I think
it would be good for the Committee--I support this bill
strongly--to step back and look at what is being done to
collect.
Mr. Coble. Professor, I don't want to put you all in a
straight jacket. We are going to have a vote at about 11:00, so
if you could be brief. I want to have a second round as well.
But go ahead, Professor.
Mr. Beloof. I think an assessment by this Committee and
staff about things like forfeiture and what resources are
available to the Federal Government to assure collection and
how that is done is a laudable notion.
Ms. Jackson Lee. Quickly, Mr. Felman, could you respond on
that payment system?
Mr. Felman. We need to look at where the forfeiture dollars
are going because, in my experience, I see a lot more money
going into forfeiture, and I don't know where that money goes
either.
Ms. Jackson Lee. What about not releasing individuals
because they have not paid?
Mr. Felman. If it was tied to the amount they could
actually pay and if the judge was saying, I think, that in your
lifetime, if you work this hard, you can pay this; if we let
the judge actually make some rational assessment of what
somebody could actually pay, I might be more inclined to look
at that. The problem is that by definition the person's ability
to pay is simply not relevant. So we know that the reason why
the amount of uncollected restitution exploded after 1996 is
that we started ordering amounts that everyone knew couldn't be
paid.
Ms. Jackson Lee. So that is a good amendment for this bill.
Mr. Felman. If we got rid of the mandatory nature of it,
that would be a huge step in my opinion. At least, let's study
it. I would love to see a study on whether making--ordering
people to pay what they can't pay results in paying any more.
Ms. Jackson Lee. I thank you. I thank the Chairman.
Mr. Coble. Thank the gentlelady.
We are going to go through a second round here, folks. This
is an important issue. And Mr. Levey, I want to extend what the
gentlelady of Texas said. We extend our condolences to you
because you are right in the middle of it more so than the rest
of us. You have direct exposure.
Professor Beloof, Mr. Felman expressed some concern about
disclosing portions of the PSR as it relates to assets. As we
all know, the PSR is now confined to the parties that are the
defendant and the Government. What do say you to that?
Mr. Beloof. Well, I say, first of all, that that is not
correct that the PSR can be given to anyone or any portion of
the PSR can be given to anyone at the judge's discretion. I
would note that Congress has recently overwhelmingly passed the
Crime Victims Rights Act which provides for full and complete
restitution. That was in October of 2004. It was signed by the
President, the most recent affirmation of full and complete
restitution. And in order for victims to adequately speak at
sentencing and seek restitution, courts should now and can now
in their discretion be allowing portions of the PSR to be
released to victims and their attorneys.
Mr. Coble. I thank you, sir.
Mr. Felman, I don't think this was put to either of you
witnesses. How does a court's extension of probation or
supervised release violate Blakely?
Mr. Felman. Because, under current law, there is a
statutory maximum term of probation that is permitted to be
imposed, and it is 5 years. In the absence of any--that is the
statutory limit on the term of probation. It is 5 years. For
supervised release, depending on the classification of the
felony, it is either 2 years, 3 years, 4 years or 5 years. What
this would do is say that, based upon a judge's finding of fact
with regard to an amount of restitution, that if that
restitution exceeds the defendant's ability to pay it during
the period of the statutory--the otherwise authorized statutory
period of probation--that additional punishment will therefore
be visited upon the defendant; that is a period of supervised
release or probation in excess of the statutory maximum penalty
that would apply in the absence of that judicial fact-finding
solely based upon the judge's fact finding. And my reading, I
mean, you know, you never know what the Supreme Court is going
to do, but my reading of Apprendi, Blakely and Booker would be
that that would squarely present a very significant sixth
amendment issue.
Mr. Coble. I don't want to simplify this, but as far as
restitution is concerned, I don't want criminals to be able to
conclude, well, I am going to go knock off a bank or I am going
to go kill someone and not have to answer to it. That is the
part that I want to keep in the forefront.
Thank you, gentlemen.
The gentleman from Virginia.
Mr. Scott. Thank you, Mr. Chairman.
Professor Beloof, can a defendant plead--file bankruptcy to
discharge debts incurred in an institutional crime?
Mr. Beloof. Not anymore, sir.
Mr. Scott. Were they ever able to do it?
Mr. Beloof. Yes, they were.
Mr. Scott. When?
Mr. Beloof. Well, I guess this issue first came across my
desk about 14 years ago in a case in which I represented a
State court judge, and since then, Congress has moved to
eliminate bankruptcy for intentional criminal conduct.
Mr. Scott. Okay. Following up on the question of extended
probation, what would be the enforcement mechanism after the
otherwise statutory maximum time for supervision? Would the
defendant be subject to jail for nonpayment even if he could
pay after that maximum period of time?
Mr. Beloof. If he could pay?
Mr. Scott. If he could pay.
Mr. Beloof. Under this bill?
Mr. Scott. Right.
Mr. Beloof. I believe so.
Mr. Scott. He could be jailed.
Mr. Beloof. I believe so, if he could pay.
Mr. Scott. If he had the ability to pay and didn't pay
after the statutory maximum period of supervision otherwise
available in law.
Mr. Beloof. I believe so, sir.
Mr. Scott. Mr. Felman, is that your view, too?
Mr. Felman. No doubt about it.
Mr. Scott. Does anyone have a study to show that this bill
would actually increase or decrease the amount of money
actually paid?
Mr. Beloof. There is, to my knowledge, there is no study.
Mr. Scott. Does anyone have access to a study that would
show that this would actually increase or decrease recidivism?
Mr. Beloof. This particular bill, I don't believe there has
been a study on this particular bill, sir.
Mr. Scott. Thank you.
Mr. Coble. I thank the gentleman.
The distinguished gentleman from Ohio.
Mr. Chabot. Thank you, Mr. Chairman.
I would just first note that we pass bills all the time
around this place where we don't have a study that indicates
exactly what is likely to happen, and sometimes, common sense
tells us that if you do one thing, there will be an----
Mr. Scott. Would the gentleman yield?
Mr. Chabot. Yes, I would be happy to yield.
Mr. Scott. We have actually passed bills where the studies
showed our actions would actually increase crime.
Mr. Chabot. In reclaiming my time, we have passed many
bills around here, and we have had studies. We have also
oftentimes had studies where this study says you are going to
have this result; or you had this result, and you have another
study that is completely opposite of that. And we have the
ability around here to pick some studies over others or
disregard all of them, but I don't think the fact that there
hasn't been an independent expensive taxpayer-paid study that
is going to say what is going to happen as a result of this
really amounts to anything.
And I might also add that I have--we were talking before
with the Ranking Member, that we actually agree on a number of
things besides the Federal prison industry, the Voting Rights
Act, the Black farmers issues and others as well. This is one
that we happen to disagree on.
My friend, Mr. Delahunt, before, I think, made some point
about indicating rightly that most crimes that are committed in
the United States are dealt with at the State level or at the
local level because they are not Federal crimes, although there
are Federal crimes that do have an impact on the lives of the
American people. Look at the Oklahoma City bombing, as Mr.
Levey mentioned, for example. But there are about 55 murders
every year where there is Federal jurisdiction, and it is my
understanding, according to a study, that in about 38 percent
of those murders, there was no fine, no restitution or anything
else. And those are the types of cases that this would plug up
the hole.
I would also mention, there are an awful lot of fraud cases
which are Federal crimes. According to a study, apparently
there were 5,364 fraud cases at the Federal level and in only
about a third of those, 30 percent, were there any fines or
restitution in those cases. But as I believe Professor Beloof
also mentioned, just because the crimes are committed at the
State level, if we pass a law here in Washington, oftentimes
what we do here doesn't get attention and State officials look
and they say, well they did this at the Federal level, and why
don't we do this in this State or this State? So what--we do
have impact sometimes for the good and sometimes for the bad.
So getting back to that whole line of thought, Professor,
if you could just comment on this idea about the number of
crimes at the Federal level. Most crimes are actually at the
State or local level, and what would be the impact something
like this could have over and above just those people that
would be directly affected in the Federal court system?
Mr. Beloof. I know that the most recent significant crime
victim law Congress has passed is grabbing the attention of
State legislators and State Governors. And I have been
consulted by several Governors' offices and legislative
officers who are seeking to enact more meaningful victims'
rights laws as a result of the overwhelming support for that
statute in both the Senate and the House. So Federal approaches
to criminal justice are--can be very significant in the States.
Mr. Chabot. Thank you.
And I have just been handed a study here also--Cynthia
Kempinen, it is called, ``Payment of Restitution and
Recidivism''--that indicates, at least this study says that
paying restitution does decrease recidivism.
And going back to you, Professor, could you, again, just
remind us, because sometimes we get sort of far field, what--
why we have restitution and just what it is, what holes we are
trying to plug here. What have been the problems, and what are
we trying to solve by this particular piece of legislation?
Mr. Beloof. Part of the problem has been the collection
problem. And much of what is solved in this bill is making more
efficient collection. The suggestion that we pre-freeze assets,
facilitating probation officers, collection of information for
the courts, providing the prosecutors' office with more tools
to facilitate the collection, removing some of that
information, collection out of the courtroom and into the
administrative and executive branches. These things are all
going to facilitate the collection of restitution.
In addition, the extension of time simply lengthens the
time, the probability, I believe, increases the probability of
the time during which offenders are going to continue to pay
that restitution.
Mr. Chabot. Thank you.
Mr. Coble. I thank the gentleman.
Ms. Jackson Lee, do you have another round?
Ms. Jackson Lee. Thank you.
Let me ask Mr. Levey just your vision, your passion and
again my acknowledged sympathy for your loss. What would you
like in terms of getting a bill passed? What would be your
instruction? What can we do? You said--you heard what I said,
$87 billion--$13 billion, I am sorry, not paid and 87 percent
of the restitution not paid. What would strike the appropriate
response for you?
Mr. Levey. Well, I know the answer isn't to not do anything
to answer the question backwards, but I would like to see that
number lowered. Obviously, I would like to see a more effective
enforcement in collection of restitution and some consequence
like still being under supervision if you don't pay it. It is
amazing, in Arizona, we can extend restitution at the State
level or we can extend probation 3 years on the end of their
term, and you know, a lot of those people do find a way to come
up with the money when they start to get to the point where
they are going to be extended. Not all of them, but I don't
think the burden should be less on the offender. I think
victims are owed the restitution literally and always by the
system, and so I don't have a remedy, a magic pill here. I
think we are moving along the right direction with this type of
legislation and just ramping it up and making offenders realize
that this is an important part of their sentence, and it isn't
going to be discharged because you can't pay it or because it
is more than you can afford right now. They shouldn't have done
the crime.
Ms. Jackson Lee. I think you have, in your words, struck a
very fair balance. You want something done. This legislation,
of course, opens the door for discussion. But we can find a way
to answer, I think, for your concerns as we develop something
that will work and pass constitutional muster.
Just quickly to Professor Beloof, and I would like Mr.
Felman to respond after, and this will be my last question.
Isn't it possible or isn't there the potential that this
expanded mandatory restitution may in fact include what is
perceived to be a consequential damage? Do you see that
happening?
Mr. Beloof. Yes, the question--I mean, the question is
whether, I guess, in the first instance, whether the bill
allows consequential damages. If it does, and I am not
confident that it does, it would be only implicitly. If it did,
I am sure it would be constitutional. I don't think there is a
constitutional problem with consequential damages.
Ms. Jackson Lee. Mr. Felman?
Mr. Felman. I agree there is not necessarily a
constitutional prohibition on including consequential damages,
but I think this bill clearly does that. It requires----
Ms. Jackson Lee. Is that the purpose of the criminal law?
Mr. Felman. Well, not in my view. I mean, it would be one
thing if you were going to tailor it to what they could
actually pay, then we could have an intelligent discussion
about whether it is worth having to go through all of the
trouble to litigate consequential damages. Get that. But we
know nobody is going to be able to pay it, but it will be
mandated litigated anyway.
Ms. Jackson Lee. Let me--I think my concluding comment is
that, why don't we do something that works here? And why don't
we do something that alleviates the pain of Mr. Levey and many
other families in order to do that? Why don't we address some
of the fractures in this bill that I think keep it from
seriously going forward? I hope to be able to do that.
Mr. Felman. One improvement that I would think that victims
might be interested in having is, as I mentioned earlier, is
the ability to actually settle. In other words, say a victim is
owed a $100,000, and the defendant only has $10,000, but his
mom will loan him $90,000 in order to satisfy his restitution
obligation. Now, no victim has to agree to anything like that.
Well, that would be a full settlement. Suppose they can
compromise it. No victim would have to agree to any settlement.
But right now, the law does not vest a district court with the
jurisdiction to permit the settlement. And if I am the victim,
I want to have the opportunity to at least settle if I want to.
And I think that would be an improvement for the bill, and I
would think most victims would at least want to have that
option even if they don't choose to exercise it.
Ms. Jackson Lee. I want a solution, as I close, for the
pain of victims. I want somebody that is going to move forward,
and what I have heard from the three of you is, we can address
the plight of victims that should be addressed, but we can also
be realistic and move forward so that victims are truly
compensated. That is what I would like to say.
Mr. Coble. I thank the gentlelady.
Mr. Scott. I would ask the gentleman from Ohio to provide
the details of the study that he cited, and I would appreciate
that.
Mr. Chabot. Be happy to.
Mr. Scott. There are other studies on mandatory minimums
and find what juveniles and adults, with a clear consensus of
mandatory minimums as it wastes the taxpayers' money, in trying
more juveniles as adults, the clear consensus of those studies
is that it increases crime. Unfortunately, both poll well, and
as the gentleman from Ohio has suggested, they tend to pass
because they poll well, not because they will actually do
anything about crime. I yield back.
Mr. Coble. Well, this has been a good hearing, gentlemen. I
thank you all for being here. I very much appreciate your
contribution. In order to help ensure a full record and
adequate consideration of this important issue, the record will
be left open for additional submissions for 7 days, also
written questions that a Member wants to submit should be
submitted within that same 7-day time frame.
This concludes the legislative hearing on the Criminal
Restitution Act of 2006. Thank you for your cooperation and
your attendance as well as those in the hearing room.
And the Subcommittee stands adjourned.
[Whereupon, at 10:50 a.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Robert C. Scott, a Representative
in Congress from the State of Virginia, and Ranking Member,
Subcommittee on Crime, Terrorism, and Homeland Security
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__________
Prepared Statement of the Honorable Shelia Jackson Lee, a
Representative in Congress from the State of Texas
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__________
Prepared Statement of the Honorable Steve Chabot, a Representative in
Congress from the State of Ohio
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