NACDL Releases Badly-Needed Federal Restitution Study – Update for September 26, 2025

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

NO ONE CARES ABOUT RESTITUTION… UNTIL THEY DO

Neither fish nor fowl, restitution has long been considered to be remedial – intended to make victims whole – rather than punishment. And many defendants who receive a restitution order pay little attention to it because they are much more fixated on the amount they are getting the enormous amount they will be ordered to pay someday.

Unfortunately, someday always comes, leaving defendants struggling in many cases with restitution that has nothing to do with what they can afford, how much they made from the offense, or even the losses of the victims.

Last week, the National Association of Criminal Defense Attorneys published a report on federal restitution that was detailed, surprising, and insightful. The report found that $110 billion of federal restitution debt remains outstanding, with a full $100 billion of that being deemed “uncollectible.” The average amount of a federal criminal restitution order is more than $3.3 million, including not the “full amount” of a victim’s losses, but often includes calculations of pre-and post-judgment interest as well. In 30% of restitution orders, the victims incurred no loss but are entitled to repayment anyway.

Restitution hearings can be held after sentencing hearings, and not every circuit recognizes a defendant’s right to be present at those restitution hearings (although a pending Supreme Court case, Ellingburg v. United States, may have something to say about that). Courts do not have to apportion liability among defendants; when defendants are found “jointly and severally liable,” each defendant is legally responsible for the full amount of the victim’s losses.

Just last week, the 3^rd Circuit ruled that a restitution order where the defendant had stolen from two gun stores was flawed because the stores were awarded the value of the guns and lost sales income from the guns as well.

The NACDL study recommended that Congress and the Supreme Court should recognize that a restitution hearing is part of the sentencing process and therefore is a “critical stage” in the criminal legal process at which the defendant has a right to be present, that because a sentencing is focused on incarceration, a separate restitution hearing should be required to specifically address how much restitution should be ordered and to whom.

The study also argued that federal restitution statutes should be amended to require judges to consider a defendant’s ability to pay, and when payment is ordered, defendants should only be required to reimburse actual losses. The study proposed that joint and several liability should be eliminated.

The chance for any constructive criminal justice legislation with this President and this Congress is minimal. Just last night, we saw the DOJ used on the direct order of the President to charge one of his political enemies. So don’t expect any defendant-friendly changes in the law any time soon, even if they make perfect sense.

Still, the 46-page study, well-crafted and meticulously documented, is worth the download.

NACDL, Empty Pockets and Empty Promises: How Federal Restitution Law Fails Everyone (September 16, 2025)

Ellingburg v. United States, Case No. 24-482 (oral argument October 14, 2025)

United States v. McCormack, Case No. 24-2500, 2025 U.S. App. LEXIS 24139 (3d Cir. September 18, 2025)

~ Thomas L. Root