18 USC 3663A: Mandatory Restitution to Victims

Under 18 U.S.C. 3663A, mandatory restitution requires federal judges to order defendants convicted of certain crimes to repay their victims for the full amount of loss, and the judge has no discretion to reduce that amount based on what the defendant can afford to pay.¹ The statute uses the word “shall,” and courts have consistently read that as an unconditional command. Restitution sits alongside any fine or prison term, not in place of it, and the obligation can follow a defendant for decades.

Which Offenses Trigger the Mandate

Section 3663A does not apply to every federal conviction. It reaches four categories of offenses that involve an identifiable victim with a physical injury or financial loss:

Crimes of violence as defined in 18 U.S.C. 16, which covers conduct involving the use or substantial risk of physical force against another person.
Offenses against property under Title 18, including crimes committed by fraud or deceit. Burglary, theft, wire fraud, mail fraud, and identity theft fall here.
Consumer product tampering under 18 U.S.C. 1365.
Theft of medical products under 18 U.S.C. 670, covering stolen pharmaceuticals and medical devices.

The Mandatory Victims Restitution Act of 1996, enacted as part of Public Law 104-132, created this framework. Before the MVRA, judges could decline restitution or reduce amounts based on the defendant’s finances. That discretion still exists for offenses outside 3663A’s list, where 18 U.S.C. 3663 governs and the court weighs ability to pay. Under 3663A, it doesn’t.

The Two Narrow Exceptions

For property and fraud offenses only, a court can decline to order mandatory restitution if it finds on the record that the number of identifiable victims is so large that restitution is impracticable, or that determining the cause and amount of each victim’s loss would so complicate the sentencing process that the burden outweighs the benefit.² Neither exception applies to crimes of violence.

Courts use these exceptions sparingly. A large fraud scheme with thousands of scattered victims and unclear individual losses is the standard scenario, but simply having many victims isn’t enough; the judge has to explain the reasoning on the record.

What Restitution Covers

The statute defines what a defendant must repay based on the type of harm. Courts cannot award more than actual losses, but the categories are broad.

Bodily Injury

When an offense causes physical harm, restitution covers medical care, psychiatric and psychological treatment, physical therapy, occupational rehabilitation, and lost income tied to the injury. If the victim dies, funeral and related costs are added.³ Expert testimony often projects long-term treatment costs when a victim needs ongoing care.

Property Loss

For property offenses, the defendant must return the property or, if that is impossible, pay the greater of the property’s value at the time of the crime or its value at sentencing, less any portion already returned.³ Courts rely on appraisals, comparable sales data, and expert assessments. The “greater of” rule keeps a defendant from benefiting when property values decline between the crime and sentencing.

Costs of Participating in the Case

Across every offense type, restitution also covers a victim’s lost income and expenses from participating in the investigation or prosecution, including child care and transportation.³ Victims often overlook this category.

Insurance Payments Don’t Reduce the Amount

Compensation a victim already received from insurance or another source cannot be considered when the court calculates restitution.⁴ Once the victim is fully repaid, the court redirects further payments to the insurer or other entity that covered the loss. Victims get paid first. Separately, if a victim later wins a civil judgment for the same loss, restitution already received is subtracted from the civil recovery, so no one is compensated twice.

How the Amount Gets Set

The calculation follows a structured process under 18 U.S.C. 3664. At least 60 days before sentencing, the prosecution gives the probation officer a list of victims and their claimed losses. The probation officer notifies victims of their right to submit a sworn statement of losses.⁵ The defendant files a financial disclosure listing assets, income, and expenses.

All of this feeds into the presentence investigation report, which Federal Rule of Criminal Procedure 32 requires to include a restitution analysis whenever the law permits it.⁶ Both sides can argue the amount at sentencing. The prosecution must prove the loss by a preponderance of the evidence, a lower standard than the criminal “beyond a reasonable doubt.”⁴

If losses aren’t fully known at sentencing, the court can set a deadline of up to 90 days after sentencing for a final figure. If a victim later discovers additional losses, they have 60 days from that discovery to petition for an amended order, and they must show good cause for not raising the losses earlier.⁵

When Multiple Defendants Are Involved

When co-defendants are convicted of the same crime, courts typically impose joint and several liability. Each defendant is individually responsible for the full restitution amount, not just the share they personally received. If three co-defendants steal $300,000 and one pocketed only $50,000, that defendant is still liable for the full $300,000. Victims can pursue any defendant for the full balance, and the order is satisfied for all of them once the total has been collected. Courts can apportion restitution by share instead, but under the MVRA that is less common. The default surprises defendants who assumed they’d owe only their own take.

Paying the Order

A defendant’s finances don’t affect whether restitution is ordered, but they shape the payment schedule. Courts can order lump-sum payments, installments, or wage garnishment, with the U.S. Probation Office monitoring compliance.

During Incarceration

The Bureau of Prisons runs the Inmate Financial Responsibility Program, which encourages inmates to put prison wages and other available funds toward restitution.⁷ Prison wages are modest, so payments during incarceration are usually small. But participation affects classification and program access, so there is real incentive to cooperate.

After Release

On supervised release, probation officers oversee schedules that can be adjusted for changes in income and expenses. The government can also intercept federal payments owed to the defendant through the Treasury Offset Program, including tax refunds, certain federal benefits, and government contractor payments.⁸

Windfalls

If a defendant receives a substantial sum from any source while a restitution balance remains, whether an inheritance, a lawsuit settlement, or another windfall, the defendant must apply those resources to the outstanding balance.⁴ The obligation is automatic under the statute.

What Happens If You Don’t Pay

Failing to pay restitution is treated more seriously than defaulting on a consumer debt. Courts can hold defendants in contempt, revoke probation or supervised release, or impose additional penalties. Under 18 U.S.C. 3614, a judge can resentence a defendant who willfully refuses to pay or fails to make genuine efforts, potentially adding prison time. No one, however, can be imprisoned solely because they are too poor to pay.⁹

Most enforcement disputes turn on whether a defendant can’t pay or won’t. A defendant with steady income who claims poverty, hides assets, or makes conspicuous purchases while skipping payments is the classic target for resentencing. A defendant who is genuinely indigent and can document it is protected from imprisonment, though the debt itself continues.

How the Government Collects

A restitution order creates an automatic lien against all of the defendant’s property and property rights, treated under the law like a federal tax lien. The lien arises the moment judgment is entered.¹⁰ The tax-lien comparison isn’t decorative: the government can seize property, garnish wages, and levy bank accounts using the same tools the IRS uses.

The Department of Justice’s Financial Litigation Unit handles active enforcement, coordinating with Treasury and probation offices. Defendants can be required to submit detailed financial disclosures, and courts can investigate suspected concealment of assets.

How Long the Obligation Lasts

Liability to pay restitution ends on the later of two dates: 20 years after entry of judgment, or 20 years after the defendant’s release from imprisonment.¹⁰ For a defendant sentenced to 10 years, liability can extend up to 30 years from the date of conviction.

Death does not erase the debt. If a defendant dies with an unpaid balance, the estate remains responsible, and the government’s lien continues until the estate receives a written release.¹⁰ The Financial Litigation Unit pursues collection through the statutory period or until death, whichever comes first.¹¹

Bankruptcy will not clear it either. Under 11 U.S.C. 523(a)(13), any payment ordered as restitution under Title 18 is excluded from discharge.¹² A defendant who files Chapter 7 or Chapter 13 emerges from bankruptcy still owing every dollar of the restitution balance. That is one of the features that separates federal criminal restitution from an ordinary civil judgment.

1
Office of the Law Revision Counsel. 18 U.S. Code 3663A – Mandatory Restitution to Victims of Certain Crimes
2
Office of the Law Revision Counsel. 18 U.S. Code 3663A – Mandatory Restitution to Victims of Certain Crimes – Section: Applicability
3
Office of the Law Revision Counsel. 18 U.S. Code 3663A – Mandatory Restitution to Victims of Certain Crimes – Section: Order of Restitution
4
Office of the Law Revision Counsel. 18 U.S. Code 3664 – Procedure for Issuance and Enforcement of Order of Restitution
5
Office of the Law Revision Counsel. 18 USC 3664 – Procedure for Issuance and Enforcement of Order of Restitution
6
Legal Information Institute. Federal Rules of Criminal Procedure – Rule 32 Sentencing and Judgment – Section: Presentence Investigation
7
Federal Bureau of Prisons. Financial Responsibility Program, Inmate
8
Bureau of the Fiscal Service. Frequently Asked Questions for Debtors in the Treasury Offset Program
9
Office of the Law Revision Counsel. 18 U.S. Code 3614 – Resentencing Upon Failure to Pay a Fine or Restitution
10
Office of the Law Revision Counsel. 18 U.S. Code 3613 – Civil Remedies for Satisfaction of an Unpaid Fine
11
Department of Justice. Restitution Process
12
Office of the Law Revision Counsel. 11 U.S. Code 523 – Exceptions to Discharge