Restitution Orders: How the Amount Is Set, and How Long It Is Enforced

Restitution is a criminal sentence component that pays identified victims for what an offence cost them. It is not a fine, which goes to the government, and it is not forfeiture, which strips proceeds and instrumentalities from the defendant. It is a judgment in favour of a victim, imposed by a criminal court and enforced by the United States.

Two federal statutes carry most of the traffic. One gives courts discretion to order restitution for a broad set of offences. The Mandatory Victims Restitution Act, enacted in 1996, removes that discretion for crimes of violence, offences against property under title 18 including those committed by fraud or deceit, and several other categories, where an identifiable victim suffered a pecuniary loss.

What "mandatory" actually removes

Where the Act applies, the court must order full restitution to each victim without considering the defendant's economic circumstances in setting the amount. Ability to pay is relevant only to the payment schedule — how much per month, starting when — not to the size of the judgment. That distinction disappoints defendants and confuses victims in equal measure. A person with no assets can leave a sentencing hearing owing several million dollars.

A narrow escape hatch exists where the number of identifiable victims is so large, or the issues so complex, that determining restitution would unduly complicate or prolong the sentencing process to a degree that the burden outweighs the need to compensate. Courts use it sparingly.

The offence of conviction defines the scope. Restitution generally covers losses caused by the conduct underlying the counts of conviction, not everything the defendant did — with an important exception where the offence involves a scheme, conspiracy, or pattern as an element, in which case losses to all victims of that scheme can be included. Plea agreements also routinely provide for restitution on dismissed counts or on uncharged conduct by agreement, which is one reason the restitution paragraph deserves as much attention as the sentencing paragraph, as our brief on plea agreements and collateral consequences explains.

What counts as a loss

The 2018 decision on participation costs changed corporate victim practice significantly. Legal and forensic fees spent on an internal inquiry conducted before or alongside the government's are frequently the largest number on a corporate victim's affidavit and are frequently not recoverable. Costs of responding to government requests and of attending proceedings stand on different footing.

Procedure and burden

• The probation office identifies victims and gathers loss information for the presentence report.
• Victims submit affidavits describing losses, with supporting documentation attached rather than summarized.
• The government bears the burden of proving the amount by a preponderance of the evidence; the defendant bears the burden on assets, income, and dependants.
• Disputes are resolved by the court, which may hold a hearing and may rely on the presentence report where it is not contested.
• Where losses are not ascertainable before sentencing, the court sets a date for final determination — a period the statute measures in days, though the Supreme Court held in 2010 that missing it does not always defeat an order.
• The court enters the order with the amount, the payees, and the schedule, apportioning liability among defendants or imposing it jointly and severally.
• Victims should confirm their contact and payment details with the court's financial office, because uncollected funds sit undistributed when addresses go stale.

Verify before relying: several offence categories — child exploitation, trafficking, and certain fraud offences — are governed by their own restitution statutes with distinct definitions and, in some cases, statutory minimum awards. Identify the specific statute before applying the general framework described here.

Enforcement runs for decades

A restitution order is enforced by the United States in the same manner as a civil judgment, using the federal debt collection statutes. A lien arises on entry of judgment and can be recorded like a tax lien. Collection tools include wage garnishment, levies on bank accounts, seizure of tax refunds and federal benefit payments through administrative offset, and turnover of property in which the defendant holds an interest. Exemptions available to ordinary judgment debtors are substantially narrower against the United States.

Liability lasts. The statute keeps the obligation enforceable for twenty years from entry of judgment or twenty years after release from imprisonment, whichever is later, ending earlier only on death. Interest generally accrues unless the court waives it. Criminal restitution is also excepted from bankruptcy discharge, so filing does not remove it.

• The schedule is treated as the whole obligation. A monthly payment set by the court does not limit the government's separate authority to enforce the judgment against assets, and defendants who assume otherwise are surprised by a levy.
• Windfalls are not reported. An inheritance, settlement, or lottery win is a material change in circumstances and is normally subject to a notification duty. Concealment converts a debt problem into a new offence.
• The schedule is never revisited. Either party can ask the court to adjust the payment schedule on a material change in economic circumstances. Defendants who fall ill or lose work rarely ask, and then accrue arrears.
• Restitution and forfeiture are conflated. They are separate obligations, can be imposed in the same case, and are calculated differently — see our brief on asset forfeiture. Forfeited funds are sometimes restored to victims, but that is a discretionary process, not an automatic credit.
• Victims stop tracking the case. Payments arrive in small amounts over years through the clerk's office; a victim who moves without updating the record simply stops receiving them.
• The debt becomes a permanent record entry. An outstanding federal judgment behaves like any other collateral consequence — it surfaces in credit and background checks long after the sentence is served.

Identity theft cases have their own rhythm

Where the offence is identity theft, the victim's provable loss often looks small next to the practical harm — hours spent correcting records, accounts opened and closed, credit damage. Federal law allows an order for the value of the victim's time reasonably spent trying to remediate the harm in identity theft cases, which makes contemporaneous time records worth keeping from the first day.

Restitution is also only part of the remedy. A victim should file an identity theft report, place a security freeze, and pursue the correction rights that run against furnishers and credit bureaus regardless of what any criminal court orders. Our brief on identity theft recovery sets out that parallel track, which usually moves faster than the criminal case.

Questions the desk gets

The defendant has no money. Why order restitution at all?

Because the statute requires it where it applies, and because circumstances change over twenty years. The order also establishes the loss authoritatively, which matters if assets appear later, if the defendant inherits, or if a civil action follows. Courts set nominal schedules for defendants with nothing, and the government revisits collection when the financial picture changes.

Can a victim also sue civilly?

Yes, though amounts recovered in one forum reduce what can be collected in the other. A civil action offers broader damages — pain and suffering, punitive damages, consequential losses that restitution excludes — and carries its own cost and delay. Victims should decide deliberately rather than assuming the criminal case will make them whole; restitution is limited to the categories the statute lists.

What happens if the defendant dies?

Liability to pay restitution terminates on death under the federal statute, and courts have divided on what happens to a judgment when a defendant dies while a direct appeal is pending. Estates and victims in that posture should get authority specific to the circuit rather than assuming a general rule.

Do state courts handle this the same way?

The concept is universal and the machinery is not. Nearly every state provides for restitution, many through a constitutional victims' rights provision, but states differ on whether ability to pay affects the amount, whether the order converts automatically into a civil judgment, how long it is enforceable, and whether a probation department or a civil creditor's process does the collecting. Treat any single state's approach as a labelled example.

How to use this brief

Victims should document losses in the statute's categories from the first week, keep time records, and file an affidavit with attachments rather than totals. Defence counsel should test causation and documentation before sentencing, because the amount is far easier to contest then than to reduce afterwards, and should treat the payment schedule and the notification duties as live obligations for the life of the judgment.

Restitution is decided at the same hearing as the sentence itself — see our brief on federal sentencing — and more sits on the Consumer & Criminal Procedure desk. This brief describes federal law as of mid-2026 and notes that state schemes differ substantially; it is general information, not legal advice, and both victims and defendants should work from the specific statute charged.