Many federal crimes impose financial penalties in addition to prison time for a convicted defendant. The three types of penalties are fines, restitution, and forfeiture. How and when they apply are governed by different federal statutes. Importantly, a defendant may have to pay one or more penalties depending on the circumstances of the crime.
Fines are intended to punish offenders and deter others from criminal activity. They may be specified in the federal statute under which a defendant is convicted or may be indicated in the Federal Sentencing Guidelines. The amount of the fine can vary depending on whether the crime is a felony or misdemeanor and the offense level. Courts can also consider the pecuniary losses suffered by others due to the crime, the defendant’s illegally obtained gains, and whether and how much restitution is ordered, among other factors.
The defendant’s financial circumstances may also be taken into account in determining the fine. Courts can consider the defendant’s income, earning capacity, and financial resources to pay the fine and how much of a burden the fine will be on the defendant and/or anyone financially dependent on the defendant.
The purpose of restitution is for the defendant to make the victims of the crime whole by reimbursing them for their financial losses. Such losses might include lost income, property damage, medical expenses, or other financial costs directly related to the crime.
The Mandatory Victims Restitution Act requires federal courts to order full restitution in certain cases, without regard to the defendant’s economic situation. This applies to defendants convicted of or pleading guilty to:
In addition, mandatory restitution exists under the Violence Against Women Act where the crime involves sexual abuse, sexual exploitation, domestic violence, and telemarketing fraud.
The amount of restitution is determined as part of the Pre-Sentence Investigation Report (PSR). Information is gathered from victims as to their losses in Victim Loss Statements. The reports are presented to the judge who must order the defendant to pay restitution.
Forfeiture focuses on recovering ill-gotten gains from the defendant to punish and deter criminal activity, rather than compensate victims as with restitution. It allows the government to seize property that was used in or acquired as a result of the crime. A key point is that the government cannot take any property; it must be connected to the criminal activity. Where innocent third parties have rights to the property, they can put in a claim to get the seized property returned.
Notably, forfeiture falls under different statutes than restitution, which can result in conflicts. Forfeiture can leave fewer assets available to pay restitution to victims.
Fines, restitution, and forfeiture can result in substantial financial losses to a defendant. To minimize the risks, consult a skilled criminal attorney who can present a persuasive case for reduced financial penalties to the probation officer, judge, and law enforcement agencies. If you are being investigated or have been arrested, contact us to learn how we can advocate for you.