Discretionary restitution under the Victim and Witness Protection Act - 18 U.S.C. §
18 U.S.C. § 3663. Order of restitution
(1) (A) The court, when
sentencing a defendant convicted of an offense under this title, section
401, 408(a), 409, 416, 420, or 422(a) of the Controlled Substances Act
(21 U.S.C. 841, 848(a), 849, 856, 861, 863) (but in no case shall a
participant in an offense under such sections be considered a victim of
such offense under this section), or section 5124, 46312, 46502, or
46504 of title 49, other than an offense described in section 3663A(c)
[18 USCS § 3663A(c)], may order, in addition to or, in the case of a
misdemeanor, in lieu of any other penalty authorized by law, that the
defendant make restitution to any victim of such offense, or if the
victim is deceased, to the victim's estate. The court may also order, if
agreed to by the parties in a plea agreement, restitution to persons
other than the victim of the offense.
(B) (i) The court, in determining whether to order restitution under this section, shall consider--
the amount of the loss sustained by each victim as a result of the
(II) the financial resources of the defendant, the financial needs and
earning ability of the defendant and the defendant's dependents, and
such other factors as the court deems appropriate.
the extent that the court determines that the complication and
prolongation of the sentencing process resulting from the fashioning of
an order of restitution under this section outweighs the need to provide
restitution to any victims, the court may decline to make such an
(2) For the purposes of this section, the term "victim"
means a person directly and proximately harmed as a result of the
commission of an offense for which restitution may be ordered including,
in the case of an offense that involves as an element a scheme,
conspiracy, or pattern of criminal activity, any person directly harmed
by the defendant's criminal conduct in the course of the scheme,
conspiracy, or pattern. In the case of a victim who is under 18 years of
age, incompetent, incapacitated, or deceased, the legal guardian of the
victim or representative of the victim's estate, another family member,
or any other person appointed as suitable by the court, may assume the
victim's rights under this section, but in no event shall the defendant
be named as such representative or guardian.
(3) The court may also order restitution in any
criminal case to the extent agreed to by the parties in a plea
(b) The order may require that such defendant--
(1) in the case of an offense resulting in damage to
or loss or destruction of property of a victim of the offense--
(A) return the property to the owner of the property or someone designated by the owner; or
(B) if return of the property under subparagraph (A) is impossible,
impractical, or inadequate, pay an amount equal to the greater of--
(i) the value of
the property on the date of the damage, loss, or destruction, or
(ii) the value of the property on the date of sentencing,
less the value (as of the date the
property is returned) of any part of the property that is returned;
in the case of an offense resulting in bodily injury to a victim
including an offense under chapter 109A or chapter 110 [18 USCS § 2241
et seq. or 2251 et seq.]--
(A) pay an amount equal to the cost
of necessary medical and related professional services and devices
relating to physical, psychiatric, and psychological care, including
nonmedical care and treatment rendered in accordance with a method of
healing recognized by the law of the place of treatment;
(B) pay an amount equal to the cost of
necessary physical and occupational therapy and rehabilitation; and
(C) reimburse the victim for income lost by such victim as a result of such offense;
in the case of an offense resulting in bodily injury also results in
the death of a victim, pay an amount equal to the cost of necessary
funeral and related services;
(4) in any case, reimburse the
victim for lost income and necessary child care, transportation, and
other expenses related to participation in the investigation or
prosecution of the offense or attendance at proceedings related to the
(5) in any case, if the victim (or if the victim is
deceased, the victim's estate) consents, make restitution in services in
lieu of money, or make restitution to a person or organization
designated by the victim or the estate; and
(6) in the case of an
offense under sections 1028(a)(7) or 1028A(a) of this title [18 USCS §§
1028(a)(7) or 1028A(a)], pay an amount equal to the value of the time
reasonably spent by the victim in an attempt to remediate the intended
or actual harm incurred by the victim from the offense.
Notwithstanding any other provision of law (but subject to the
provisions of subsections (a)(1)(B) (i)(II) and (ii)[)], when sentencing
a defendant convicted of an offense described in section 401, 408(a),
409, 416, 420, or 422(a) of the Controlled Substances Act (21 U.S.C.
841, 848(a), 849, 856, 861, 863), in which there is no identifiable
victim, the court may order that the defendant make restitution in
accordance with this subsection.
(2) (A) An order of restitution
under this subsection shall be based on the amount of public harm caused
by the offense, as determined by the court in accordance with
guidelines promulgated by the United States Sentencing Commission.
(B) In no case shall the amount of restitution ordered under this
subsection exceed the amount of the fine which may be ordered for the
offense charged in the case.
(3) Restitution under this subsection shall be distributed as follows:
(A) 65 percent of the total amount of restitution shall be paid to the
State entity designated to administer crime victim assistance in the
State in which the crime occurred.
(B) 35 percent of the total
amount of restitution shall be paid to the State entity designated to
receive Federal substance abuse block grant funds.
(4) The court
shall not make an award under this subsection if it appears likely that
such award would interfere with a forfeiture under chapter 46 or chapter
96 of this title [18 USCS §§ 981 et seq. or 1961 et seq.] or under the
Controlled Substances Act (21 U.S.C. 801 et seq.).
Notwithstanding section 3612(c) [18 USCS § 3612(c)] or any other
provision of law, a penalty assessment under section 3013 [18 USCS §
3013] or a fine under subchapter C of chapter 227 [18 USCS §§ 3571 et
seq.] shall take precedence over an order of restitution under this
(6) Requests for community restitution under this
subsection may be considered in all plea agreements negotiated by the
(7) (A) The United States Sentencing Commission
shall promulgate guidelines to assist courts in determining the amount
of restitution that may be ordered under this subsection.
No restitution shall be ordered under this subsection until such time as
the Sentencing Commission promulgates guidelines pursuant to this
(d) An order of restitution made pursuant to this
section shall be issued and enforced in accordance with section 3664 [18
USCS § 3664].