Debunking Criminal Restitution

Criminal restitution—the money paid by a defendant to a victim—is often overlooked amidst growing scholarly consensus about the adverse impact of criminal court fines and fees. Restitution receives less attention because it is perceived as a fair and unobjectionable sanction with legitimate goals, while fines and fees are now widely condemned as primarily serving as a funding source for local and state governments. Consequently, the animated and extensive discourse around financial punishment largely excludes criminal restitution.

Though criminal restitution may appear to have legitimate penological purposes, it serves to perpetually punish defendants who are poor—the vast majority of those in the criminal legal system—as courts across the country order people without means to pay. Meanwhile, most criminal restitution goes uncollected, providing little satisfaction to the victims the schemes are designed to “make whole.” At the federal level and in several states, criminal restitution has become a mandatory part of sentencing, without any consideration for a defendant’s economic circumstances. This Article reframes the lens through which we examine criminal restitution and debunks the widely accepted belief that it is an appropriate criminal financial obligation. Similarly problematic and pervasive as other types of financial punishment, criminal restitution has transformed into a form of wealth extraction from the most vulnerable, perpetuating existing inequalities with few benefits to victims. To that end, this Article calls for a reimagining of criminal restitution and explores various alternative frameworks for achieving its policy goals, while also promoting defendants’ successful reintegration into their communities.

Introduction

Across the country, defendants¹This Article adopts the terminology “victim” and “defendant” because they are widely understood and recognized in criminal law. The Author, however, acknowledges that its usage presents a false dichotomy and does not fully capture the complexities and overlap between those who are harmed and those who may cause harm.
who interact with the criminal legal system are required to pay exorbitant amounts of money as a consequence of their system involvement.²See Laura I. Appleman, Nickel and Dimed into Incarceration: Cash-Register Justice in the Criminal System, 57 B.C. L. Rev. 1483, 1483–85 (2016) (describing the mounting fees associated with every stage of the criminal legal process as “cash register justice”).
These financial sanctions take a variety of forms—statutory fines, “user” fees, collection costs and surcharges, criminal restitution—and can be levied at various stages of the criminal court process, even punishing those who are never convicted.³See id.; Alicia Bannon, Rebekah Diller & Mitali Nagrecha, Criminal Justice Debt: A Barrier to Reentry, Brennan Ctr. for Just. (Oct. 4, 2010), https://www.brennancenter.org/our-work/research-reports/criminal-justice-debt-barrier-reentry [perma.cc/NAB7-B4RS]; cf. Brief for Respondents in Opposition, Culley v. Marshall, No. 22-585 (filed Mar. 1, 2023), 2023 WL 2390293; Brief for Petitioners, Culley v. Marshall, No. 22-585 (filed Jun. 22, 2023), 2023 WL 4202388.
In the last few decades, financial punishments have increased dramatically at both state and federal levels.⁴See Alexes Harris, Heather Evans & Katherine Beckett, Drawing Blood from Stones: Legal Debt and Social Inequality in the Contemporary United States, 115 Am. J. Socio. 1753, 1769–70 (2010) (finding that between 1991 and 2004, the number of individuals in prison who received a monetary sanction jumped 41 percent).
Unsurprisingly, the web of court-imposed sanctions disproportionately burdens those who have little capacity to pay, leading many criminal justice advocates to call for reform in recent years.⁵See Neil L. Sobol, Charging the Poor: Criminal Justice Debt & Modern-Day Debtors’ Prisons, 75 Md. L. Rev. 486, 492–94 (2016).

Notably, scholarly attention drove criminal justice reforms around monetary sanctions. In 2015, the U.S. Department of Justice (DOJ) launched an investigation into unlawful police and court practices in Ferguson, Missouri, concluding that these practices disproportionately targeted and harmed its Black residents.⁶ C.R. Div., DOJ, Investigation of the Ferguson Police Department (2015).
Following this investigation, much of the spotlight focused on fines (statutory assessments for each offense) and fees (costs associated with being a “user” of the system—e.g., public defender and court supervision fees—that are intended to reimburse or offset costs for local governments) criminal courts levy.⁷For discussions on the racial and economic implications from criminal fines and fees, see, for example, Lindsay Bing, Becky Pettit & Ilya Slavinski, Incomparable Punishments: How Economic Inequality Contributes to the Disparate Impact of Legal Fines and Fees, 8 Russel Sage Found. J. Soc. Scis. 118 (2022); Kasey Henricks & Daina Cheyenne Harvey, Not One but Many: Monetary Punishment and the Fergusons of America, 32 Socio. F. 930 (2017); Devah Pager, Rebecca Goldstein, Helen Ho & Bruce Western, Criminalizing Poverty: The Consequences of Court Fees in a Randomized Experiment, 87 Am. Socio. Rev. 529 (2022).
The scholarship around fines and fees since 2015 is particularly robust and has been a springboard for legislative activism and impact litigation around these practices. ⁸In recent years, state courts and legislators have undertaken various initiatives aimed at reforming fines and fees practices. These initiatives include the establishment of state task forces, the development of bench cards to educate judges about the impacts of these practices, the elimination of interest charges, the reduction or removal of criminal system user fees, the decriminalization of certain motor vehicle violations, and the implementation of community service provisions in lieu of financial punishment. See April D. Fernandes, Michele Cadigan, Frank Edwards & Alexes Harris, Monetary Sanctions: A Review of Revenue Generation, Legal Challenges, and Reform, 15 Ann. Rev. L. Soc. Sci. 397, 401–03, 408 (2019); see also Theresa Zhen, (Color)Blind Reform: How Ability-to-Pay Determinations Are Inadequate to Transform a Racialized System of Penal Debt, 43 N.Y.U. Rev. L. & Soc. Change 175, 177–78 (2019) (describing how reformers advocating for “ability-to-pay” determinations have achieved successful litigation outcomes in several states, drawing attention to the violation of due process rights for indigent defendants and advancing bipartisan legislation).

Criminal restitution, however, is often overlooked in this national call for systemic reform. Although somewhat different in purpose and character than other monetary sanctions, restitution involves the same practice of disproportionately punishing poor defendants while also bringing little satisfaction to victims.⁹See William M. Acker, Jr., Making Sense of Victim Restitution: A Critical Perspective, 6 Fed. Sent’g Rep. 234, 235 (1994); Matthew Dickman, Should Crime Pay?: A Critical Assessment of the Mandatory Victims Restitution Act of 1996, 97 Calif. L. Rev. 1687, 1700–01 (2009).
As with other monetary sanctions, restitution is levied with little to no consideration of a defendant’s ability to pay.¹⁰See 18 U.S.C. § 3664(f)(1)(A) (“In each order of restitution, the court shall order restitution to each victim in the full amount of each victim’s losses as determined by the court and without consideration of the economic circumstances of the defendant.” (emphasis added)); Sobol, supra note 5, at 492–93.
A host of punitive consequences attaches when a person cannot pay their restitution, including reincarceration, loss of public benefits, and disenfranchisement.¹¹See Cortney E. Lollar, What Is Criminal Restitution?, 100 Iowa L. Rev. 93, 123–25 (2014); see also Beth A. Colgan, The Excessive Fines Clause: Challenging the Modern Debtors’ Prison, 65 UCLA L. Rev. 2 (2018); John Gibeaut, Get Out of Jail—But Not Free: Courts Scramble to Fill Their Coffers by Billing Ex-Cons, ABA J. (July 1, 2012, 9:50 AM), https://www.abajournal.com/magazine/article/get_out_of_jailbut_not_free_courts_scramble_to_fill_their_coffers_by_billin [perma.cc/JV9D-VTS7].
Children, often too young to even work to pay restitution orders, are not immune from these consequences, with juvenile courts in every state possessing the authority to impose restitution on youth.¹²See Jessica Feierman, Naomi Goldstein, Emily Haney-Caron & James Fairfax Columbo, Juv. L. Ctr., Debtors’ Prison for Kids?: The High Cost of Fines and Fees in the Juvenile Justice System 5 (2016).
Yet, despite its prevalence and troubling consequences, criminal restitution has not drawn the same attention or outrage as fines and fees.¹³For examples of outrage about fines and fees with little-to-no discussion of restitution, see Joseph Shapiro, As Court Fees Rise, the Poor Are Paying the Price, NPR (May 19, 2014, 4:02 PM), https://www.npr.org/2014/05/19/312158516/increasing-court-fees-punish-the-poor [perma.cc/XM8R-TMGB]; Fines and Fees Just. Ctr., finesandfeesjusticecenter.org [perma.cc/XFE4-XGXD] (advocating for the end of fines and fees without mention of restitution); Kiren Jahangeer, Fees and Fines: The Criminalization of Poverty, ABA (Dec. 16, 2019), https://www.americanbar.org/groups/government_public/publications/public_lawyer_articles/fees-fines/ [perma.cc/9F2Y-LS6G]; End Justice Fees, https://endjusticefees.org/ [perma.cc/2S5G-RM6Z] (stating dedication to “ending fees in the justice system” without mention of restitution). See also Alexandra Shookhoff, Robert Constantino & Evan Elkin, The Unintended Sentence of Criminal Justice Debt, 24 Fed. Sent’g Rep. 62, 62 (2011) (discussing areas of reform to criminal justice debt policy but excluding restitution from the conversation).

This disparate treatment is likely rooted in the penological justifications for restitution. Fines-and-fees reform is driven by the notion that no legitimate penological purpose justifies the imposition of fines and fees, which primarily serve as a source of revenue generation for local and state governments.¹⁴See Fernandes et al., supra note 8, at 400.
Criminal restitution, on the other hand, has been long perceived as a fair criminal remedy because its stated goals—centered on making the victims “whole”¹⁵See, e.g., United States v. Yalincak, 30 F.4th 115, 128 (2d Cir. 2022) (“[T]he primary purpose of criminal restitution is to make the victim of a crime whole . . . .”).
and holding defendants accountable¹⁶During the enactment of the primary federal restitution statute, for example, the Senate Judiciary Committee noted, “It is essential that the criminal justice system recognize the impact that crime has on the victim, and, to the extent possible, ensure that offender[s] be held accountable to repay these costs.” S. Rep. No. 104-179, at 18 (1995).
—are deemed legitimate. Criminal restitution is also rooted in multiple theories of punishment¹⁷Restitution theory is particularly rooted in theories of retribution, deterrence, and rehabilitation. See Paroline v. United States, 572 U.S. 434, 457–58 (2014); Kelly v. Robinson, 479 U.S. 36, 49 n.10 (1986).
that the criminal justice system firmly values, leaving it undertheorized and unchallenged.¹⁸See Lollar, supra note 11, at 135, 141.
As a result, unlike other forms of financial sanctions, criminal restitution has largely been an underexamined punishment in both practice and scholarship. This Article exposes criminal restitution for what it is. Substantially departing from its intended goals, criminal restitution is a pervasive form of wealth extraction¹⁹Wealth extraction refers to the practice of taking money or assets from individuals accused of crimes, often though fines, fees, restitution, and other financial penalties, which can disproportionately affect low-income individuals. See Cortney Sanders & Michael Leachman, Step One to an Antiracist State Revenue Policy: Eliminate Criminal Justice Fees and Reform Fines, Ctr. on Budget & Pol’y Priorities (Sept. 17, 2021), https://cbpp.org/research/state-budget-and-tax/step-one-to-an-antiracist-state-revenue-policy-eliminate-criminal [perma.cc/LS2A-NXAN].
on marginalized defendants with de minimis returns for victims.

To animate these issues, consider the following two examples:²⁰These examples are based on a composite of cases from my time as an Assistant Federal Public Defender.

Mr. A is charged in federal district court with selling prescription pills over the dark web. He was a small business owner who had never been in trouble with law enforcement. After suffering a terrible accident that left him paralyzed, he was unable to continue running his business and his life quickly unraveled. Mr. A is also in considerable pain, which he struggles to manage on a daily basis. He becomes dependent on his prescription pills and, to both feed his habit and get back on his feet financially, he joins others in selling those pills over the dark web. In his mid-sixties, Mr. A plays a minimal role in the scheme and makes little profit from these sales. Mr. A pleads guilty to conspiring to distribute prescription pills and now has a felony conviction (his first). The court sentences Mr. A to four years in prison, followed by a period of supervised release. Pursuant to a federal statute mandating restitution,²¹Mandatory Restitution to Victims of Certain Crimes Act, 18 U.S.C. § 3663A(c)(1)(A)(ii).
the court also orders him to pay $1.3 million in restitution. $1.3 million constitutes the amount of total sales earned in the conspiracy, even though there is arguably no financial loss suffered in this case and Mr. A only benefitted from a very small fraction (approximately $10,000) of those sales. Notably, the court could not consider whether Mr. A could actually pay this massive debt (he could not) or whether he could earn the money to pay it off in the future. He will be close to seventy years old upon release. Considering his age and inability to work due to his disability, particularly after serving a four-year prison sentence, there is a high likelihood that Mr. A will never be able to satisfy this restitution debt. If he cannot make payments on his restitution, he could lose his disability benefits and his housing, and he will face the constant threat of reincarceration for the next twenty years.²²See 18 U.S.C. § 3613(c). Pursuant to the applicable federal restitution statute, the Mandatory Victims Restitution Act of 1996, restitution judgments can be enforced up to twenty years from the entry of the judgment, a defendant’s release from imprisonment, or after a defendant’s death. 18 U.S.C. § 3663A.

Ms. B works as a receptionist for a small corporation. She is a single mother of two children. Over a period of several years, Ms. B steals money from the company’s operating account, totaling $200,000. As part of her sentence, Ms. B is ordered to pay the entire amount back to her former employer. She is released from prison and compliant with her obligations on supervised release—except for paying the enormous amount she owes in restitution. With a felony conviction on her record, for defrauding her employer at that, Ms. B is having great difficulty finding work and cannot pay her bills. As a single parent, she is also supporting her now teenage children by herself, as well as her elderly mother. In light of her minimal earnings, the court has placed her on a payment plan, ordering her to pay a minimum of $50 a month toward her restitution obligation. At that rate, the company she defrauded would not be compensated for over twenty-seven years. If she fails to make those monthly payments, Ms. B is at risk of returning to prison or facing continued and potentially more restrictive conditions of supervised release.

These cases are not outliers. They reflect scenarios playing out across courthouses in the United States every day.²³See, e.g., Commonwealth v. Kocott, 277 A.3d 1122 (Pa. Super. Ct. 2022) (unpublished table decision) (affirming the defendant’s restitution payment at ,600 per month and affirming the trial court’s decision to impose an additional aggregate term of six-to-twelve months of incarceration for failure to pay); People v. Petri, 258 Cal. Rptr. 3d 466, 468 (Ct. App. 2020) (holding that due process did not require a hearing on defendant’s ability to pay before the court imposed mandatory restitution); Benton v. State, 711 A.2d 792, 798–99 (Del. 1998) (affirming a ,450.65 restitution order where the State’s evidence showed that the defendant had stolen at least ,300); Commonwealth v. Oree, 911 A.2d 169, 174 (Pa. Super. Ct. 2006) (holding that a ,229,229.09 restitution order is not per se unconstitutional even if it takes the defendant a lifetime to pay).
Both cases capture the problems inherent in criminal restitution as it exists today, particularly when made mandatory and a defendant’s financial circumstances are not weighed heavily into consideration.²⁴See Cortney E. Lollar, Punishment Through Restitution, 34 Fed. Sent’g Rep. 98, 99 (2022).

Yet, in recent years, use and scope of restitution as a criminal sanction has dramatically expanded.²⁵For example, in the context of criminal child pornography cases, Professor Cortney Lollar coins the expansion of criminal restitution a “restitution revolution,” with few checks on how state and federal courts should impose it. See Cortney E. Lollar, Child Pornography and the Restitution Revolution, 103 J. Crim. L. & Criminology 343, 345, 349 (2013); see also Lollar, supra note 11, at 94–99.
In large part, this was the result of a successful victims’ rights movement of the 1970s and 1980s, which pushed for a series of reforms in the criminal legal system to better respond to the harms and experiences of victims, including in the restitution context.²⁶See Lollar, supra note 25, at 351.
Buoyed by this movement, the modern restitution regime has widely transformed into a punitive mechanism²⁷See Paroline v. United States, 572 U.S. 434, 456 (2014) (stating that restitution serves “punitive purposes” as it “still implicates ‘the prosecutorial powers of government’ ” (quoting Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 275 (1989))).
that arguably allows victims to seek personal retribution from defendants for their criminal conduct.²⁸Lollar, supra note 11, at 132; see Lollar, supra note 25, at 387.
Today, courts have embraced a broad conception of restitution which ostensibly compensates for a range of intangible and noneconomic harms, both present and future.²⁹See, e.g., Lollar, supra note 25, at 345; John C. Coffee, Jr., Does ‘Unlawful’ Mean ‘Criminal’?: Reflections on the Disappearing Tort/Crime Distinction in American Law, 71 B.U. L. Rev. 193 (1991); John C. Coffee, Jr., Paradigms Lost: The Blurring of the Criminal and Civil Law Models—And What Can Be Done About It, 101 Yale L.J. 1875 (1992).

The proliferation of laws making restitution mandatory—starting with the federal restitution statute, the Mandatory Victims Restitution Act³⁰18 U.S.C. § 3663A.
(MVRA), passed in 1996—has placed those punitive goals in sharp focus in recent years.³¹Following MVRA, many states have also made criminal restitution mandatory. See, e.g., State v. Rey, 905 N.W.2d 490, 492 (Minn. 2018); Commonwealth v. Weir, 201 A.3d 163, 176 n.3 (Pa. Super. Ct. 2018) (Kunselman, J., concurring) (“Pennsylvania’s mandatory restitution statute, [18 Pa. C.S.A. § 1106(c)(2)(ii)], is similar to the Mandatory Victims Restitution Act (MVRA), 18 U.S.C.A. § 3663A, which began requiring federal courts to order restitution for certain crimes in 1996 . . . . Many states, including Pennsylvania, now have similar statutes. Pennsylvania’s statute likewise removed judicial discretion from sentences of restitution; the only discretion remaining is the method of payment.”).
MVRA makes restitution mandatory in nearly all cases where there is an “identifiable victim” with a “physical injury or pecuniary loss,”³²18 U.S.C. § 3663A(c)(1)(B).
removing judicial discretion entirely from the analysis on how to impose restitution.³³See id. § 3663A(a)(1) (“Notwithstanding any other provision of law . . . the court shall order . . . that the defendant make restitution to the victim of the offense . . . .”); David Peters, Unsettled: Victim Discretion in the Administration and Enforcement of Criminal Restitution Orders, 166 U. Pa. L. Rev. 1293, 1295 (2018).
Federal courts are not permitted to consider a defendant’s ability to pay, and, in many cases, the statute requires that federal courts order the “full amount” of each victim’s losses.³⁴18 U.S.C. § 3664(f)(1)(A) (“In each order of restitution, the court shall order restitution to each victim in the full amount of each victim’s losses as determined by the court and without consideration of the economic circumstances of the defendant.”).
Notably, state legislatures seem to share Congress’s lust for pecuniary punishment: Thirty-one states and Guam now have mandatory restitution statutes, the vast majority of which were enacted after MVRA.³⁵Nine states impose mandatory restitution across the criminal code that is not limited to a specific offense. See Alaska Stat. § 12.55.045 (2019); Ariz. Rev. Stat. Ann. § 13-1309 (2005); Cal. Pen. Code § 1202.4 (West 2021); Colo. Rev. Stat. § 18-1.3-603 (2005); Fla. Stat. § 775.089 (2012); Ga. Code Ann. § 17-14-3 (2005); Mich. Comp. Laws § 780.766 (1985); Or. Rev. Stat. § 137.106 (2022); Wash. Rev. Code § 7.69.030 (1993); see also Vt. R. Crim. P. 32 (mandating restitution “[i]n every case in which a victim has suffered a material loss”). Twenty-two states and one U.S. territory impose mandatory restitution for specific offenses. See Ala. Code § 13A-6-155 (2010); Guam Code Ann. § 80.53 (2021); Haw. Rev. Stat. § 707-785 (2011); Idaho Code § 18-8604 (2006); 720 Ill. Comp. Stat. 5/10-9 (2010); Ind. Code § 35-42-3.5-2 (2018); Kan. Stat. Ann. § 22-3424 (2015); La. Stat. Ann. § 15:539.3 (2013); Miss. Code Ann. § 97-3-54.6 (2013); Mo. Rev. Stat. § 566.218 (2017); Mont. Code Ann. § 87-6-906 (2011); N.H. Rev. Stat. Ann. § 633:10 (2010); N.J. Stat. Ann. § 2C:13-8 (2005); N.M. Stat. Ann. § 30-52-1 (2008); N.C. Gen. Stat. § 14-43.20 (2013); N.D. Cent. Code Ann. § 12.1-41-09 (2015); Okla. Stat. § 21-748 (2008); R.I. Gen. Laws § 11-67.1-10 (2017); S.C. Code Ann. § 16-3-2040 (2012); Tenn. Code Ann. §§ 39-13-307, 39-13-308 (West 2008); Tex. Penal Code Ann. § 42.037 (2005); W. Va. Code § 61-14-7 (2017); Wyo. Stat. Ann. § 6-2-710 (2013).

The rapid expansion of mandatory restitution statutes came with an expansion of the powers to enforce restitution orders. Restitution orders are often steep and long-lived, effectively keeping people entangled in criminal debt long after they have completed their sentence and severely limiting their economic mobility after release.³⁶See Dickman, supra note 9, at 1707; see also U.S. Gov’t Accountability Off., GAO-18-203, Federal Criminal Restitution: Most Debt Is Outstanding and Oversight of Collections Could Be Improved (2018) (finding, during 2014–2016, federal restitution was imposed on 33,158 offenders and “courts ordered these offenders to pay .9 billion in restitution,” which is an average of over million per offender).
Those unable to satisfy a restitution order face a range of both civil and criminal penalties, including suspension of a driver’s license, seizure of property, wage garnishment, continued court monitoring, and a constant threat of returning to jail.³⁷See, e.g., Karin D. Martin et al., Monetary Sanctions: Legal Financial Obligations in US Systems of Justice, 1 Ann. Rev. Criminology 471, 475–76 (2018); Tenn. Code Ann. § 40-29-202(b)(1)(2018) (conditioning eligibility to vote on having paid restitution obligations); Fla. Stat. § 775.089(5)(2023) (“The outstanding unpaid amount of the order of restitution bears interest . . . and . . . becomes a lien on real estate owned by the defendant.”); 730 Ill. Comp. Stat. 5/5-5-6(b)(“If a defendant fails to pay restitution in the manner or within the time period specified by the court, the court may enter an order directing the sheriff to seize any real or personal property of a defendant to the extent necessary to satisfy the order of restitution and dispose of the property by public sale.”).
When people are not able to immediately pay off their obligations, “poverty penalties,” such as interest and collection costs, are imposed, further ballooning criminal debt.³⁸See Colgan, supra note 11, at 7.
Restitution orders have lasting consequences even for those who manage to find the money to pay off their obligations, affecting their ability to build income, attain housing stability, and generally support themselves and their families.³⁹See Harris et al., supra note 4, at 1756, 1780, 1787–88; Kate K. O’Neill, Ian Kennedy & Alexes Harris, Debtors’ Blocks: How Monetary Sanctions Make Between-Neighborhood Racial and Economic Inequalities Worse, 8 Socio. Race & Ethnicity 43, 55 (2021) (finding that monetary sanctions, including restitution, keep individuals, especially people of color, tethered to the criminal legal system and prevent economic mobility); Devah Pager, The Mark of a Criminal Record, 108 Am. J. Soc. 937, 942–43 (2003).

As with other monetary sanctions, restitution falls most harshly on the poor.⁴⁰See Sobol, supra note 5, at 516–21; Dickman, supra note 9, at 1706.
Little scholarship exists on the causal relationship between restitution and wealth inequality in the criminal legal system. This Article argues that restitution contributes to a system of wealth extraction that reinforces racial and economic injustice in the criminal system. Because of its lack of consideration of one’s ability to pay, restitution has fueled a substantial increase in criminal debt for those involved in the system. The additional financial liability pushes people who are already struggling, particularly communities of color, deeper into poverty.⁴¹See generally Brittany Friedman, Carceral Immobility and Financial Capture: A Framework for the Consequences of Neoliberal Penology, 4 UCLA Crim. Just. L. Rev. 177 (2020).
By the same token, restitution has not helped to create “a more victim-centered justice system,” as MVRA purported to do.⁴²See S. Rep. No. 104-179, at 13 (1995); Valiant R.W. Poliny, A Public Policy Analysis of the Emerging Victims’ Rights Movement 227–42 (1994); Sara Manaugh, The Vengeful Logic of Modern Criminal Restitution, 1 L., Culture & Human. 359, 372–73 (2005).
Because most people ordered to pay restitution lack the means to satisfy restitution obligations, the vast majority of restitution dollars never end up in the hands of crime victims.⁴³ U.S. Gov’t Accountability Off., supra note 36, at 25.
This phenomenon is most evident at the federal level. Based on recent statistics, the Government Accountability Office determined that $100 billion of the $110 billion in outstanding federal restitution debt is uncollectible overwhelmingly due to defendants’ limited capacity to pay.⁴⁴Id.
This Article, offering the federal restitution statute as a case study, lifts the lid on the hidden harms and inefficiencies of criminal restitution, which undermine the restorative goals intended to help victims of crime move forward and diminish defendants’ ability to achieve rehabilitation upon release.

This Article proceeds in four parts. Beginning with Part I, this Article first explores the threshold question of why restitution has been an outsider in the growing discourse around financial punishment in the criminal legal system. Although some scholars criticize restitution in its application, much of the scholarly focus centers on the need to extend various constitutional protections before imposing restitution in criminal proceedings. The constitutional debate is worthy of discussion and further underscores the unique issues around restitution. But as a preliminary matter, it is critical to address the elephant in the room: Restitution is often left out of the growing discourse on financial sanctions in criminal court. Part I addresses the underlying reasons for this different treatment and contributes to existing scholarship by first tackling why restitution is largely ignored, in stark contrast to fines and fees, and then addressing why it deserves widespread attention on par with other forms of financial punishment.

Part II tracks the evolution of criminal restitution as an institutionalized mechanism for imposing punishment, examining how it has become such a core part of criminal sentencing in recent decades. Part II delves into how and why the use and scope of criminal restitution has dramatically expanded over the last four decades. Specifically, Part II focuses on criminal restitution’s application at the federal level, which served as a model for mandatory restitution statutes for state legislatures and led the nationwide shift in removing judicial discretion from decision-making on restitution. This Article offers the federal restitution regime as a case study because it set the trend for restitution’s expansion and highlights the hidden inefficiencies and harms caused by it.

Part III exposes and debunks two central misconceptions upon which criminal restitution is based, casting a spotlight on the undervalued consequences of the financial sanction on people’s lives. The first misconception is that restitution is beneficial to defendants and furthers important goals in our criminal legal system, particularly rehabilitation and accountability. The second misconception is that victims, those whom restitution laws and practices are purportedly intended to serve, are fulfilled by criminal restitution and made economically whole. Instead, the unfulfilled promise of restitution only undermines the restorative goals intended to help victims of crime move forward and diminishes the ability of defendants to successfully reenter society. Part III places a particular focus on how criminal restitution perpetuates racial and economic inequalities for people of color entrapped in the criminal legal system. Restitution orders can permanently tie those involved in the criminal legal system and upend their chances to rebuild their lives and reintegrate back into society.

Last, in Part IV, this Article proposes various alternative frameworks for achieving the policy goals of criminal restitution while also promoting defendants’ reintegration into society. As an initial matter, this Article considers a necessary restructuring of criminal restitution through various legislative and judicial reforms, starting with a return to its original roots of disgorgement of unlawful gains. In addition, the restitution framework must embrace a discretionary model where judges are instructed to evaluate restitution relative to a defendant’s financial circumstances. Part IV also explores how judges can exercise their discretion to impose alternatives to monetary restitution altogether, such as restorative justice initiatives, and seek to limit the severe collateral consequences of nonpayment.

I. Restitution Overlooked

Restitution is one of four major forms of monetary sanctions. The different sanctions are often used interchangeably,⁴⁵Monica Llorente, Criminalizing Poverty Through Fines, Fees, and Costs, ABA (Oct. 3, 2016), https://www.americanbar.org/groups/litigation/committees/childrens-rights/articles/2016/criminalizing-poverty-fines-fees-costs [perma.cc/K29L-4AJK] (“There are many different terms used interchangeably across the country—such as monetary sanctions, legal financial obligations (LFOs), and assessments (e.g., in Illinois)—to describe the different fines, fees, and costs associated with offenses and the courts.”).
but they are distinct in nature: (1) Fines are monetary penalties set by statute and typically tied to the offense of conviction; (2) Fees are administrative charges to reimburse the government for the costs of operating the criminal legal system, such as charges for pretrial and probation supervision, substance abuse treatment, and counsel; (3) Surcharges are costs imposed on top of the original charges and can accumulate for unpaid penalties;⁴⁶See Martin et al., supra note 37, at 474 tbl.1 (reporting different states’ ranges of surcharges for driving with a suspended license, from as low as Missouri’s .50–.50 surcharge range to as high as Illinois’s –,022.50 surcharge range). Similar to fees, “surcharges are commonly used to financially support courts and other government agencies. However, unlike fees, surcharges are imposed regardless of the actual criminal justice services used.” Id. at 473.
and (4) Restitution is the money defendants owe to victims to compensate for a victim’s losses.⁴⁷Id.
These sanctions can be imposed regardless of whether one is convicted of a crime⁴⁸See Appleman, supra note 2, at 1492–1500 (listing numerous preconviction fees around the country, including jail booking fees, bail “administrative” fees, dismissal fees, public defender application fees, and private probation fees); Briana Hammons, Tip of the Iceberg: How Much Criminal Justice Debt Does the U.S. Really Have?, Fines & Fees Just. Ctr. 2 (Apr. 28, 2021), https://finesandfeesjusticecenter.org/content/uploads/2021/04/Tip-of-the-Iceberg_Criminal_Justice_Debt_BH1.pdf [perma.cc/TQ55-5J2P] (“[P]robation fees may be imposed by a local probation department either before trial or after a conviction.”); Wesley Dozier & Daniel Kiel, Debt to Society: The Role of Fines & Fees Reform in Dismantling the Carceral State, 54 U. Mich. J.L. Reform 857, 861 (2021) (describing how Tennessee, like many states, charges defendants pretrial jail fees, which toll daily); Martin et al., supra note 37, at 480 (noting the costs of court-ordered programs, such as “drug monitoring, domestic violence rehabilitation, and driving lessons,” have significantly increased since the 1990s).
and can result from the most minor of offenses.⁴⁹Although this applies for all types of cases, the most common financial sanctions arise in misdemeanor, traffic, and citation cases. See Harris et al., supra note 4, at 1757 n.3 (naming misdemeanor cases as “the sanctioning practices most likely to result in payment of monetary sanctions”); U.S. Comm’n on C.R., Targeted Fines and Fees Against Communities of Color: Civil Rights and Constitutional Implications 1 (2017) (“A vast majority of low-level fines are traffic citations, such as speeding and parking tickets. These violations are usually remedied through monetary fines.” (footnote omitted)).
Fines and fees are more common in “misdemeanors, infractions, and other relatively less serious crimes” than in felony cases.⁵⁰ Council of Econ. Advisers, Fines, Fees, and Bail: Payments in the Criminal Justice System That Disproportionately Impact the Poor 3 (2015).
Across the country, defendants are charged for a host of services that were once provided for free, including those services that are constitutionally required, such as costs associated with having a public defender or exercising the right to trial.⁵¹As of 2022, forty-two states and the District of Columbia authorize courts to impose public defense system fees. Marea Beeman et al., Nat’l Legal Aid & Def. Ass’n, At What Cost?: Findings from an Examination into the Imposition of Public Defense System Fees 2 (2022); see, e.g., Okla. Stat. tit. 22, § 1355.14 (2004) (authorizing cost of counsel recoupment fees); Wash. Rev. Code § 36.18.016 (2022) (setting jury demand charge at 5 for a six-person jury and 0 for a twelve-person jury); Shapiro, supra note 13 (“In at least 43 states and the District of Columbia, defendants can be billed for a public defender. . . . In Washington state, for example, they even get charged a fee for a jury trial—with a 12-person jury costing 0, twice the fee for a six-person jury.”).

For those unable to pay immediately, “poverty penalties” typically result from interest and collection fees. On top of fees and fines, surcharges for late payments and processing fees accumulate and further burden those who cannot pay.⁵²Sobol, supra note 5, at 519; see also Llorente, supra note 45.
In Iowa, for example, if a defendant paying their fees in installments fails to pay within thirty days of the date their payment is due, the entire remaining debt is considered delinquent and up to 25 percent of the total debt can be added to the amount owed.⁵³ Iowa Ct. R. 26.6 (2013).
A defendant convicted of a simple misdemeanor can owe the court up to $855.⁵⁴ Someone convicted of a simple misdemeanor is fined between 5 and 5. Iowa Code § 903.1 (2020). Iowa adds a “criminal penalty” equal to 35 percent of the fine imposed. Id. § 911.1.
If they are placed on an installment plan, which requires them to pay at least $50 per month, they could owe more than $1,200 after only one missed payment.⁵⁵Iowa Ct. R. 26.6 (2013).
In the last ten years, financial sanctions have exploded in amount, frequency, and scope.⁵⁶Joseph Shapiro, Supreme Court Ruling Not Enough to Prevent Debtors Prisons, NPR (May 21, 2014, 5:01 AM), https://www.npr.org/2014/05/21/313118629/supreme-court-ruling-not-enough-to-prevent-debtors-prisons [perma.cc/5WFG-XGXL] (“Since 2010, 48 states have increased criminal and civil court fees.”).

The central difference between restitution and fines, fees, and surcharges boils down to who gets paid. With fines, fees, and surcharges the local court system or government typically profits. With restitution, crime victims are the intended beneficiary.⁵⁷Lollar, supra note 11, at 123 n.108. But see id. at 142–43 (describing restitution orders that do not go to the victim but, instead, to third parties).
The practical effects of restitution, however, often mirror those of other forms of financial punishment, particularly when individuals are unable to meet payment obligations.

The result is that those who owe restitution, fines, fees, and surcharges are often left with crushing criminal debt, resulting in what many call a modern-day debtors’ prison.⁵⁸See, e.g., Kate Gibson, Poor Defendants Say They Face Modern-Day Debtors’ Prison, CBS Moneywatch (Aug. 23, 2016, 5:15 PM), https://www.cbsnews.com/news/poor-defendants-say-they-face-modern-day-debtors-prison [perma.cc/J78D-5CWE]; Sobol, supra note 5, at 487.
Whether for fines, fees, surcharges, or restitution, the vast majority of those who are system involved do not have the financial ability to meet these obligations. 82 percent of felony defendants at the state level⁵⁹ Caroline Wolf Harlow, DOJ, NCJ 179023, Defense Counsel in Criminal Cases 1 (2000) bjs.ojp.gov/content/pub/pdf/dccc.pdf [perma.cc/V3A5-ALU2]. The most recent national data regarding state indigent defense is from 2000. “It is widely assumed that more than 80 percent of criminal case defendants qualify for appointed counsel today.” Beeman et al., supra note 51, at n.1.
and approximately 76 percent at the federal level qualify as indigent.⁶⁰Court-appointed counsel represented approximately 76 percent of federal criminal defendants from 2015 to 2018. Kelly Roberts Freeman, Bryce Peterson & Richard Hartley, Urb. Inst., Counsel Type in Federal Criminal Court Cases, 2015–18 13 tbl.3 (2022).
System-involved people face harsh consequences when they do not meet their payment obligation, including criminal penalties (e.g., reincarceration and indefinite periods of supervision), civil penalties (e.g., suspension of driver’s license, loss of public benefits, disenfranchisement, inability to obtain public benefits), and financial penalties (e.g., impact on credit). These sanctions are often assessed with little-to-no consideration for a defendant’s economic circumstances, even when courts are not required to impose them.⁶¹See Matthew Menendez, Lauren-Brooke Eisen & Noah Atchison, Brennan Ctr. for Just., The Steep Costs of Criminal Justice Fees and Fines (2019), https://www.brennancenter.org/our-work/research-reports/steep-costs-criminal-justice-fees-and-fines [perma.cc/YEN8-UWSL]; Bannon et al., supra note 3, at 27.

However, thanks to the 2015 DOJ investigation into unlawful practices of the Ferguson, Missouri police department, a national spotlight was placed on the problematic nature of the use of fines and fees in courts across the country.⁶²See, e.g., Michael Martinez, Alexandra Meeks & Ed Lavandera, Policing for Profit: How Ferguson’s Fines Violated Rights of African-Americans, CNN (Mar. 6, 2015, 10:55 PM), https://www.cnn.com/2015/03/06/us/ferguson-missouri-racism-tickets-fines/index.html [perma.cc/YZ42-5E7N]; April D. Fernandes, Michele Cadigan, Frank Edwards & Alexes Harris, Monetary Sanctions: A Review of Revenue Generation, Legal Challenges, and Reform, 15 Ann. Rev. L. Soc. Sci. 397, 397 (2019) (“The Ferguson Report became a watershed moment for understanding the costs and consequences of the monetary sanctions system for communities of color. Since that time, myriad reports, studies, and commissions have uncovered evidence that suggests that Ferguson, Missouri, was not an outlier but rather part of a broader set of systems throughout the country . . . .”).
The practice of imposing revenue-generating charges in the criminal system was far from new and for years considered an acceptable way to raise local and state funds. The investigation revealed that the Ferguson, Missouri Police Department engaged in practices that were improperly focused on generating revenue instead of public safety.⁶³In 2015, revenue targets for criminal fines and fees were set at more than million, amounting to 20 percent of the town’s entire operating budget. C.R. Div., supra note 6, at 10.
In particular, law enforcement disproportionately targeted and fined its Black residents to support the city’s municipal operations, routinely violating their constitutional rights in the fundraising process. The DOJ further concluded that the local courts in Ferguson played a critical role in exacerbating the harm these unconstitutional practices caused. “[T]he court primarily use[d] its judicial authority as the means to compel the payment of fines and fees that advance the City’s financial interests,”⁶⁴Id. at 3–5.
often issuing arrest warrants and incarcerating Ferguson residents, an overwhelming majority of whom are Black, when they missed payments. As a result of its lengthy investigation, the DOJ made several recommendations and provided resources to assist local governments across the country in reforming practices related to fines and fees.⁶⁵Id. at 10; Fernandes et al., supra note 62, at 401–02. Of course, these practices were not unique to Ferguson. See Thomas A. Garrett & Gary A. Wagner, Red Ink in the Rearview Mirror: Local Fiscal Conditions and the Issuance of Traffic Tickets, 52 J.L. & Econ. 71, 75 (2009) (“In accordance with article VII, section 7, of the North Carolina Constitution of 1971, ticket revenue in North Carolina is retained by the county in which the violation occurred and placed in a school fund to finance education.”); Paul Vitello, The Taxman Hits, in the Guise of a Traffic Cop, N.Y. Times, (July 15, 2007), https://www.nytimes.com/2007/07/15/weekinreview/15vittelo.html [perma.cc/3TUC-PXL5] (reporting that local municipalities had recently been using stricter traffic laws as “revenue enhancers,” including the city of Lakewood, Washington’s decision to create its own police department to “boost ticket income” by .4 million in the first year of the new department).

Today, fines and fees practices, exposed as a way for local and state governments to profiteer off the backs of those who are poor and low income, are widely condemned.⁶⁶See, e.g., Menendez et al., supra note 61; Matt Ford, The Problem with Funding Government Through Fines, Atlantic (Apr. 2, 2015), https://www.theatlantic.com/politics/archive/2015/04/the-problem-with-funding-government-through-fines/389387 [perma.cc/F2KJ-744Q]; Lisa Foster, The Price of Justice: Fines, Fees and the Criminalization of Poverty in the United States, U. Mia. Race & Soc. Just. L. Rev., Fall 2020, at 1; Kiren Jahangeer, Fees and Fines: The Criminalization of Poverty, ABA (Dec. 16, 2019), https://www.americanbar.org/groups/government_public/publications/public_lawyer_articles/fees-fines/ [perma.cc/9F2Y-LS6G].
A few short years ago, however, fines and fees were legitimized and accepted as either a necessary form of punishment or a cost-sharing obligation those involved in the criminal justice system simply had to endure.⁶⁷See Appleman, supra note 2, at 1485 (“As criminal justice costs have skyrocketed, the burden to fund the system has fallen largely on the system’s users, primarily the poor or indigent.”); see also Torie Atkinson, A Fine Scheme: How Municipal Fines Become Crushing Debt in the Shadow of the New Debtors’ Prisons, 51 Harv. C.R.-C.L. L. Rev. 189, 190–91 (2016).

Criminal restitution, on the other hand, is often justified as an acceptable level of punishment because its central goals are legitimized as valuable within the criminal legal system. Restitution is rooted in twin aims to “make victims whole” and hold defendants accountable by requiring them to make those payments directly to victims.⁶⁸See Off. of Just. Programs, DOJ, New Directions from the Field: Victims’ Rights and Services for the 21st Century 355 (1998) (“Restitution holds offenders partially or fully accountable for the financial losses suffered by the victims of their crimes . . . . It may also be applied to reimburse victims of violent crime for current and future expenses related to their physical and mental health recovery . . . .”).
Studies show that there are differences in how various actors in the system perceive the sanction.⁶⁹Mary Pattillo & Gabriela Kirk, Pay unto Caesar: Breaches of Justice in the Monetary Sanctions Regime, 4 UCLA Crim. Just. L. Rev. 49 (2020).
In one study, defendants accepted that restitution was a justifiable form of punishment because of its focus on direct accountability, even if they did not actually have the financial means to compensate their victims.⁷⁰ Katherine A. Beckett, Alexes M. Harris & Heather Evans, Wash. State Minority & Just. Comm’n, The Assessment and Consequences of Legal Financial Obligations in Washington State 6 (2008) (“Indeed, the majority of those interviewed accepted the premise that they should be held accountable for their past behavior, and were particularly accepting of the idea of restitution.”).
This Article sets forth how those justifications are often misguided and how the impacts of criminal restitution, for both victims and defendants, are overlooked and often harmful to both parties.

II. Evolution of Criminal Restitution

Although civil and criminal restitution have been around for centuries,⁷¹See Richard E. Laster, Criminal Restitution: A Survey of Its Past History and an Analysis of Its Present Usefulness, 5 U. Rich. L. Rev. 71, 71–72 (1970) (describing the first method of restitution in the early history of mankind as “aggressive retaliation,” where a person injured in an attack would take revenge on their attacker).
criminal restitution began to play a prominent role in criminal courts within only the last few decades. In response to a powerful victims’ rights movement in the 1980s, public opinion focused on the unique experiences and needs of crime victims and on making defendants pay as a way to both hold them accountable for their conduct and compensate for harm caused.⁷²See Manaugh, supra note 42, at 369; Victim and Witness Protection Act of 1982, Pub. L. No. 97-291, 96 Stat. 1253 (codified in scattered sections of 18 U.S.C.).
The new victim-centered paradigm and the “tough on crime” policies of the era facilitated a widespread embrace of punitive consequences for criminal defendants. Punitive consequences emphasized not only incarceration but also a variety of monetary penalties. Criminal restitution has exploded over the past forty years, both in application and enforcement.⁷³Lollar, supra note 11, at 99.
This Part examines how criminal restitution became an institutionalized part of criminal sentencing.

Modern Historical Overview

Restitution was historically a civil remedy rooted in the idea of unjust enrichment—that one party should not benefit from ill-gotten gains at the expense of another.⁷⁴Id. at 101.
Unjust enrichment traditionally involved reimbursement for actual, quantifiable losses resulting from criminal conduct, modeled after its civil counterpart, which was strictly limited to “disgorgement of unlawful gains.”⁷⁵Id. at 100; see also Restatement (Third) of Restitution and Unjust Enrichment § 1 cmt. e(3) (Am. L. Inst. 2011).
Similar to civil damages, criminal restitution was originally conceptualized as a compensatory remedy rather than a form of punishment.⁷⁶E.g., Elmar Weitekamp, Can Restitution Serve as a Reasonable Alternative to Imprisonment? An Assessment of the Situation in the USA, in Restorative Justice on Trial 81, 81–82 (Heinz Messmer & Hans-Uwe Otto eds., 1992).
For example, if a defendant robbed a victim of her purse, the victim would be entitled to only the cost of replacing the purse and items contained inside.⁷⁷See id. at 82.
Under this traditional theory, the defendant was simply required to return the profit that was wrongfully taken (i.e., the purse and its contents).

Focused less on a defendant’s unlawful gains and more on a victim’s purported “losses,” restitution in the criminal context veers significantly from its original roots. Today, the prevailing focus of restitution is to “restore” victims, a concept more broadly interpreted in conjunction with restitution’s expansion over the years.⁷⁸See Restatement (Third) of Restitution § 1 cmt. e(1) (Am. L. Inst. 2011).
Restitution orders routinely compensate victims for harms beyond financial loss, including emotional and psychological injury.⁷⁹See, e.g., Lollar, supra note 25, at 347 (describing how restitution in the noncontact child pornography context is used as a compensatory measure for emotional and psychological losses).
In fact, victims are often compensated when defendants have received no financial gain at all.⁸⁰Id. at 365; e.g., United States v. Cliatt, 338 F.3d 1089, 1091–93 (9th Cir. 2003) (noting that “a defendant must, in every case involving bodily injury, pay what it costs to care for the victim, whether or not the victim paid for the care or was obligated to do so,” so “the court must require the defendant to ‘pay an amount equal to the cost’ of necessary medical and similar care rendered to the victim” when a victim suffers bodily injury (quoting 18 U.S.C. § 3663A(b)(2))).
In the aforementioned robbery example, suppose the defendant initially stole the victim’s purse but quickly regretted the decision and returned the purse and all its contents. Technically, the victim suffered no pecuniary loss. However, as a result of the robbery, she endured psychological harm and will require individual therapy for the next two years at a cost of $20,000. Under a modern theory of restitution, defendants are regularly held accountable for future costs and losses, including lost wages and therapy.⁸¹See, e.g., United States v. Baxter, 394 F. App’x 377, 379 (9th Cir. 2010) (affirming that a ,000 restitution order was “fair and reasonable” compensation for eighteen therapy sessions the court estimated the victim may need “in the coming years”); United States v. Osman, 853 F.3d 1184, 1188, 1190, 1192 (11th Cir. 2017) (affirming that a ,250 restitution order that includes future therapy costs is permitted “as long as the award reflects a reasonable estimate of those costs and is based on record evidence”); United States v. Sukhtipyaroge, 394 F. Supp. 3d. 951, 964–65 (D. Minn. 2019).

Coinciding with a broadening interpretation of compensation, punishment now holds a more prominent focus in restitution jurisprudence than it did historically. Although views diverge on whether the primary purpose of criminal restitution is punitive or restorative,⁸²Only the Seventh and Tenth Circuits have rejected the idea that criminal restitution is punitive in nature. See United States v. Wells, 177 F.3d 603, 610 (7th Cir. 1999); United States v. Newman, 144 F.3d 531, 542 (7th Cir. 1998) (finding that the consequences of MVRA were not punitive); United States v. Visinaiz, 428 F.3d 1300, 1316 (10th Cir. 2005) (determining that MVRA did not qualify as criminal punishment and the Sixth Amendment right to a jury trial, therefore, did not apply).
the majority of courts recognize punishment as a prevalent and legitimate aim.⁸³See, e.g., United States v. Ziskind, 471 F.3d 266, 270 (1st Cir. 2006); United States v. Oladimeji, 463 F.3d 152, 156 (2d Cir. 2006); United States v. Siegel, 153 F.3d 1256, 1259–60 (11th Cir. 1998); United States v. Ramilo, 986 F.2d 333, 336 (9th Cir. 1993).
More recently, the Supreme Court, in Paroline v. United States, unequivocally acknowledged that criminal restitution serves punitive purposes, contemplating whether it should be subject to the Excessive Fines Clause.⁸⁴Paroline v. United States, 572 U.S. 434, 456 (2014).
As the Court aptly noted, “[restitution] is imposed by the Government ‘at the culmination of a criminal proceeding and requires conviction of an underlying’ crime.”⁸⁵Id. (quoting United States v. Bajakajian, 524 U.S. 321, 328 (1998)).
Thus, despite the differences between restitution and a traditional criminal fines, restitution still implicates “the prosecutorial powers of government” and serves punitive purposes.⁸⁶Id. (quoting Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 275 (1989)); see also Pasquantino v. United States, 544 U.S. 349, 365 (2005) (holding that “[t]he purpose of awarding restitution” under the federal restitution statute “is . . . to mete out appropriate criminal punishment”).
Because criminal restitution has strayed so far from its original purpose in recent years and is undeniably punitive, Professor Cortney Lollar advocates for a new term altogether that more accurately captures today’s iteration of criminal restitution: “punitive compensation.”⁸⁷Cortney E. Lollar, Punitive Compensation, 51 Tulsa L. Rev. 99, 99 (2015).
Unlike restitution, which was originally conceptualized as disgorgement of a defendant’s unlawful gains, punitive compensation contemplates making the victim “whole” by providing financial amends for a broad class of losses.⁸⁸Id. at 100.
This new terminology for criminal restitution is useful because it accurately captures how the sanction plays out in courts today, yet the terminology has not drawn much attention given the limited scholarly focus on criminal restitution. Although still compensatory, “punitive compensation” directly recognizes the primary punishment function of restitution and the moral condemnation associated with it.⁸⁹Id.

Criminal restitution has also dramatically grown in scope in other ways. In addition to the nature of victims’ losses being broadly interpreted, courts also began holding defendants financially accountable for a wide range of conduct beyond the convicted offense. The expanded range of conduct includes conduct that is not formally charged, that is without an identifiable victim, and even for which the defendant has been acquitted.⁹⁰See, e.g., United States v. Boyd, 222 F.3d 47, 50–51 (2d Cir. 2000) (“It is therefore clear that the VWPA confers authority to order a participant in a conspiracy to pay restitution even on uncharged or acquitted counts . . . .”); United States v. Henoud, 81 F.3d 484, 488 (4th Cir. 1996) (“Federal courts [under the VWPA] . . . allow broader restitution orders encompassing losses that result from a criminal scheme or conspiracy, regardless of whether the defendant is convicted for each criminal act within that scheme.”); United States v. Leman, 574 F. App’x 699, 707 (6th Cir. 2014) (affirming community restitution where there was no identifiable victim).
In federal court, for example, restitution is frequently imposed for “relevant conduct.” “Relevant conduct” includes acts that may be part of the “same course of conduct or common scheme or plan” but is not charged, much less convicted, conduct.⁹¹ U.S. Sent’g Comm’n, U.S. Sent’g Guidelines Manual § 1B1.3 (2018).
Previously, restitution was permitted for only conduct for which a defendant was convicted.⁹²E.g., Hughey v. United States, 495 U.S. 411, 420 (1990) (“[T]he loss caused by the conduct underlying the offense of conviction establishes the outer limits of a restitution order.”), superseded by statute, Mandatory Victim Restitution Act of 1996, Pub. L. No. 104-132, 110 Stat. 1227, as recognized in United States v. Onimole, No. 23–11740, 2024 WL 1232089 (11th Cir. Mar. 22, 2024); United States v. Streebing, 987 F.2d 368, 375 (6th Cir. 1993).
However, after various statutory changes in federal restitution law⁹³See 18 U.S.C. § 3663(a)(2)(2012); cf. 136 Cong. Rec. S9055 (daily ed. June 28, 1990).
and lower courts’ broad interpretations, defendants are now required to pay restitution for “acts of related conduct,” including dismissed, acquitted, and uncharged conduct.⁹⁴Lollar, supra note 11, at 131; see United States v. Donaby, 349 F.3d 1046, 1053–55 (7th Cir. 2003) (ordering restitution for damage to a police vehicle and stolen getaway car when the only crimes defendant was charged with were bank robbery and using a firearm during a crime of violence); Moore v. United States, 178 F.3d 994, 1001 (8th Cir. 1999) (ordering restitution to compensate for lost wages of a customer who was present during bank robbery “as the result of time spent giving statements, identifying the suspects, and preparing for and testifying at trial”).
“In short . . . there is now little for which a criminal defendant cannot be ordered to pay restitution, so long as there is some link, even a highly attenuated one, to the charged conduct.”⁹⁵Lollar, supra note 11, at 131.

The expansion of the definition of “victim” in recent years also increases a defendant’s potential restitution liability. Restitution is routinely imposed in drug cases, for example, where there is no discernable individual victim—the “community” is the victim.⁹⁶E.g., United States v. Leman, 574 F. App’x 699, 707 (6th Cir. 2014) (affirming a judgment requiring the defendant to pay million in community restitution in a prescription drug conspiracy case); see 18 U.S.C. § 3663(c)(1), (2)(a) (allowing restitution in drug cases where there is “no identifiable victim”).
Third parties, such as insurance companies, may also be awarded restitution as reimbursement for covered expenses.⁹⁷See, e.g., United States v. Hackett, 311 F.3d 989, 991–93 (9th Cir. 2002) (affirming the defendant’s restitution order for ,977.74 to be paid as reimbursement for the insurance company’s coverage of homeowners’ fire damage).
The growing reach of criminal restitution reflects the shift in public opinion toward “making criminals pay for their crimes”⁹⁸See, e.g., 141 Cong. Rec. S564 (daily ed. Jan. 6, 1995) (statement of Sen. Don Nickles); A Bill to Provide for Restitution of Victims of Crimes, and for Other Purposes: Hearing on S. 173 Before the S. Comm. on the Judiciary, 104th Cong. 4 (1995) (statement of Sen. Joseph R. Biden, Jr.) (“Restitution also sends a tough message to criminals: you must take responsibility for your actions and you will pay for the pain you have caused.”).
regardless of whether there is a tangible victim involved.

Few checks on how modern criminal restitution is imposed in practice exist, making criminal restitution ripe for abuse despite its dramatic expansion and underscored punitive aims. One concern of advocates and scholars is that restitution calculations are often subject to the court’s interpretation, with little guidance on how to undertake that process.⁹⁹Acker, supra note 9, at 234–35. See United States v. Salas-Fernandez, 620 F.3d 45, 48 (1st Cir. 2010) (“Determination of that monetary equivalent and ordering its payment are all that the MVRA, by its terms, requires. In calculating the amount, a sentencing court is not held to a standard of absolute precision. A ‘modicum of reliable evidence’ will suffice.” (citations omitted) (quoting United States v. Vaknin, 112 F.3d 579, 587 (1st Cir. 1997))); Paroline v. United States, 572 U.S. 434, 459–60 (2014).
Placing a monetary value on the wide range of harms for which defendants can now be held accountable is quite challenging. This difficulty is particularly true when dealing with abstract losses that are less tangible, including psychological harm, future losses, or when the harm is not caused to a specific victim, as with most drug offenses.¹⁰⁰Lollar, supra note 87, at 121.
Because criminal restitution no longer simply requires calculating defendants’ unlawful gains, calculations can be arbitrary and lack uniformity.¹⁰¹Paroline, 572 U.S. at 469–71 (Roberts, C.J., dissenting).

In addition, the fact that restitution is typically addressed as the last part in the criminal sentencing process makes it even less conducive for oversight. Oftentimes, the primary focus of the parties at sentencing is whether to impose a carceral sentence or some sentencing alternative, such as probation. Restitution is a matter “ancillary” to the sentence imposed, usually not addressed until the very end of a sentencing hearing.¹⁰²Barbara Sims, Victim Restitution: A Review of the Literature, 13 Just. Pro. 247, 252–53, 267 (2000); United States v. Bach, 172 F.3d 520, 523 (7th Cir. 1999).
Given this structure, judges may also be less likely to hold the government to its burden through a separate evidentiary hearing on determining restitution, and defense attorneys are less inclined to demand that they do.¹⁰³Pattillo & Kirk, supra note 69, at 71 (“In our interviews with prosecutors, public defenders, and probation officers, they conveyed that the financial part of the sentence was secondary to prison or jail time, . . . so they did not routinely review these details on the sentencing order with their clients.”).
With few constraints on its use, criminal restitution has run amok in courthouses across the country.

Furthermore, although the Supreme Court recognized the increasingly punitive character of criminal restitution, lower courts are reluctant to afford it any of the constitutional protections typically applied to punishment.¹⁰⁴See Colgan, supra note 11, at 41–46.
In particular, criminal restitution is consistently imposed as a financial sanction without adequate protections afforded by the Sixth and Eighth Amendments. In Apprendi v. New Jersey, the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”¹⁰⁵Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
Following Apprendi, the Court applied this rule to criminal fines, adding that any fact that increases the maximum amount of a criminal fine should also trigger the Sixth Amendment right to a jury trial.¹⁰⁶S. Union Co. v. United States, 567 U.S. 343, 346 (2012).
However, the Supreme Court has yet to explicitly apply that logic to criminal restitution. Meanwhile, circuit courts have consistently rejected defendants’ requests for juries to determine restitution questions on the grounds that restitution statutes have no statutory maximum penalty.¹⁰⁷See United States v. Stanfill El, 714 F.3d 1150, 1153 (9th Cir. 2013) (“[A]n order requiring the defendant to pay monetary restitution did not qualify as additional punishment that would trigger the right to a jury trial under the Sixth Amendment, ‘no matter how large the sum involved.’ ” (quoting United States v. Ballek, 170 F.3d 871, 876 (9th Cir. 1999))); United States v. Leahy, 438 F.3d 328, 337–38 (3d Cir. 2006) (en banc); United States v. Williams, 445 F.3d 1302, 1310–11 (11th Cir. 2006); United States v. George, 403 F.3d 470, 473 (7th Cir. 2005); United States v. Wooten, 377 F.3d 1134, 1144–45 (10th Cir. 2004).
By contrast, courts have given greater consideration to whether to apply the Eight Amendment’s Excessive Fines Clause as a limit on restitution amounts.¹⁰⁸See Kevin Bennardo, Restitution and the Excessive Fines Clause, 77 La. L. Rev. 21, 33–34 (2016).
Although current Supreme Court jurisprudence does not directly resolve the issue, in Paroline, the Court acknowledged that restitution’s punitive nature may trigger the protections of the Excessive Fines Clause.¹⁰⁹Paroline v. United States, 572 U.S. 434, 455–56 (2014).
To date, the issue stands unresolved.

Shift to Mandatory Restitution

Shortly after the victims’ rights movement placed criminal restitution in the spotlight, a flurry of victim-centered legislation quickly transformed the landscape of criminal restitution as we know it today.¹¹⁰See Victim and Witness Protection Act of 1982, Pub. L. No. 97-291, § 3579, 96 Stat. 1248, 1253–55 (codified in scattered sections of 18 U.S.C.); Victims’ Rights and Restitution Act of 1990, 42 U.S.C. § 10606 (repealed 2004);Violence Against Women Act of 1994, 18 U.S.C. §§ 2248, 2259, 2264; Mandatory Victims Restitution Act of 1996, 18 U.S.C. § 3663A.
Congress was one of the first to expand the power of courts to impose and enforce criminal restitution.¹¹¹California voters enacted a restitution measure in the same year as the VWPA, which required restitution for any criminal conviction. See Mia Baker, Comment, Restitution for Crime Victims: The California Legislature Responds to Proposition 8, 14 Sw. U. L. Rev. 745 (1984).
The 1982 President’s Task Force on Victims of Crime was born out of the robust advocacy of the victims’ rights movement and commissioned by President Reagan. The Task Force conducted a nationwide study to evaluate the many concerns victims raised about their treatment in the criminal legal system.¹¹²The Task Force interviewed victims across the country about their needs and experiences in the system and sought the opinions of various experts. See Melissa Hook & Anne Seymour, A Retrospective of the 1982 President’s Task Force on Victims of Crime (2004).
Concerns the study raised included victims not feeling sufficiently informed about critical stages of the proceedings, the absence of codified victims’ rights, and the failure to obtain restitution.¹¹³See Robert C. Davis, Barbara Smith & Susan Hillenbrand, Restitution: The Victim’s Viewpoint, 15 Just. Sys. J. 746, 747–50 (1992); Peters, supra note 33, at 1295.
The Task Force made several policy proposals in its final report on how to improve the experiences of victims in the criminal legal system.¹¹⁴Dickman, supra note 9, at 1687; President’s Task Force on Victims of Crime, Final Report (1982).
One of the leading recommendations was to guarantee that victims were awarded restitution “in every case in which the victim has suffered monetary loss.”¹¹⁵ President’s Task Force on Victims of Crime, Final Report 66 (1982).

In the following years, Congress passed three primary restitution statutes for federal courts that captured the victim-focused sentiments of that era. The statutes brought about seismic changes to criminal restitution, many of which remain to this day.¹¹⁶See Victim and Witness Protection Act of 1982, Pub. L. No. 97-29, § 3579, 96 Stat. 1248 (codified in scattered sections of 18 U.S.C.); Violence Against Women Act of 1994, 18 U.S.C. §§ 2248, 2259, 2264; Mandatory Victims Restitution Act of 1996, 18 U.S.C. § 3663A.
In response to the President’s Task Force, Congress passed the Victim and Witness Protection Act (VWPA)¹¹⁷Victim and Witness Protection Act of 1982, Pub. L. No. 97-291, 96 Stat. 1248 (codified in scattered sections of 18 U.S.C.).
in 1982, formally implementing many of the recommendations the Task Force’s final report made. The VWPA was the first piece of legislation to significantly expand the power of federal judges to order restitution in criminal cases. Prior to its passage, restitution had not been a generally institutionalized part of the sentencing framework in criminal cases.¹¹⁸See Lollar, supra note 25, at 351 n.17. Some states (Colorado, Iowa, and Minnesota) enacted restitution legislation prior to 1982, but generally speaking, restitution had not become a formalized part of sentencing on either the federal or state level prior to the VWPA. Id.
At the federal level, restitution was authorized only as a condition of probation and was limited to compensation for the loss of property or its equivalent value only.¹¹⁹See Act of Mar. 4, 1925, ch. 521, 43 Stat. 1259 (codified at 18 U.S.C. § 3651) (repealed 1984). The section applied to the “[s]uspension of sentence and probation” and provided that “the defendant . . . [m]ay be required to make restitution or reparation to aggrieved parties for actual damages or loss caused by the offense . . . .” 18 U.S.C. § 3651 (1982) (repealed 1984).
Under the VWPA, however, courts could impose restitution independently from probation and were granted authority to consider a wide range of losses when imposing restitution, not just property or financial losses, altering the federal restitution framework in a major way.¹²⁰Peggy M. Tobolowsky, Restitution in the Federal Criminal Justice System, 77 Judicature 90, 91–92 (1993).
Defendants, for the first time, were ordered to compensate victims for lost wages, medical expenses, and psychiatric treatment.¹²¹Lollar, supra note 11, at 100 n.17.
Notably, the legislation also required courts to consider a defendant’s financial circumstances—including current resources, needs, earning ability, and dependents¹²²18 U.S.C. § 3663(a)(1)(B)(i)(II) (2006).
—in an effort to ensure that defendants could, in fact, afford to pay the restitution imposed. If a court determined a defendant did not have the means to pay, it could decline ordering restitution altogether.¹²³Id. § 3579(a)(2) (1982).

The VWPA greatly enhanced the courts’ ability to order restitution but did not mandate restitution as victim advocates had initially hoped. Even with wider discretion, many judges were not inclined to order restitution.¹²⁴See H.R. Rep. No. 104-16, at 4 (1995); Dickman, supra note 9, at 1691 (“Congress’s view that judges were deficiently imposing restitution corresponded with its assessment that victims of crime were being inadequately compensated.”).
Judicial hesitancy was in part due to concerns about its impact on the rehabilitation process for defendants.¹²⁵Dickman, supra note 9, at 1702–03.
However, with the passage of the Violence Against Women Act of 1994 (VAWA),¹²⁶Violence Against Women Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796 (codified as amended in part at 18 U.S.C. § 2248).
Congress, for the first time, required courts to order criminal restitution in sex and domestical violence offenses regardless of a defendant’s indigency.¹²⁷18 U.S.C. § 2248(4).
Given the broad latitude afforded to courts at sentencing, Congress’s mandate to remove judicial discretion in this context presented a significant departure. Like its VWPA predecessor, VAWA required defendants to pay for any physical or psychological harms to victims.¹²⁸Compare 18 U.S.C. § 2248(3), with 18 U.S.C. § 3663(b)(2) (formerly 18 U.S.C. § 3579 (1982)).
VAWA was the first sign of a shift toward the institution we see today, where courts universally rubber stamp an imposition of restitution whether defendants are able to pay.

The victims’ rights movement peaked in 1996 with the enactment of the Mandatory Victims Restitution Act (MVRA),¹²⁹18 U.S.C. § 3663A.
which continues to regulate federal restitution for most offenses today. Under MVRA, judges are mandated to order restitution in nearly all federal criminal cases in which there is an “identifiable” victim who has suffered “a physical injury or pecuniary loss.”¹³⁰Id. § 3663A(c)(1)(B).
The statute defines a “victim” as anyone who is “directly and proximately harmed as a result of the commission of an offense.”¹³¹Id. § 3663A(a)(2).
MVRA expanded mandatory restitution to a broad class of offenses.¹³²Id. § 3663A(c).
Drug offenses, fraud, deceit, product tampering, theft, and domestic violence all carry mandatory restitution requirements under MVRA, many of which were discretionary under the VWPA.¹³³See Dickman, supra note 9, at 1688.
Under a separate provision, federal courts must also order restitution for crimes involving child pornography.¹³⁴18 U.S.C. § 2259.

As with VAWA, the first statute to mandate restitution, MVRA completely removed judicial discretion.¹³⁵See id § 3663A(a)(1) (“Notwithstanding any other provision of law . . . the court shall order . . . that the defendant make restitution to the victim of the offense . . . .”); Peters, supra note 33, at 1295.
Judges are no longer allowed to craft a restitution order with a defendant’s financial ability to pay in mind. In most cases, judges are mandated to order restitution in the “full amount of each victim’s losses as determined by the court and without consideration of the economic circumstances of the defendant”¹³⁶18 U.S.C. § 3664(f)(1)(A).
and can impose interest unless waived by the court.¹³⁷Any amount over ,500 accrues unless waived. A defendant’s indigence is considered a relevant factor in the waiver determination but, ironically, not one in determining the original restitution amount. See id § 3612(f).
As set forth in the statute, victims can also be reimbursed for expenses incurred from participating in the criminal legal process itself. Such costs include the “los[s] [of] income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.”¹³⁸Id. § 3663A(b)(4).
Therefore, even if it is clear that a defendant may never be able to pay restitution, judges must still impose a restitution order covering the full extent of all losses provable by a preponderance of evidence.¹³⁹See id. § 3664(e); id. § 3664(f)(1)(A) (“In each order of restitution, the court shall order restitution to each victim in the full amount of each victim’s losses as determined by the court and without consideration of the economic circumstances of the defendant.”).

Today, a defendant’s financial resources are considered only in two limited circumstances. The first is the court’s determination of the restitution payment schedule.¹⁴⁰Id. § 3664(f)(2); see also Mary Pattillo & Gabriela Kirk, Layaway Freedom: Coercive Financialization in the Criminal Legal System, 126 Am. J. Socio. 889, 890, 911 (2021) (finding that the number of individuals with payment plans has grown because, for indigent defendants, it is their only option for staying compliant with their restitution sentence).
Going back to the example of Ms. B’s case in the Introduction, because Ms. B was unemployed after serving her prison sentence and unable to find work, the judge had the authority to adjust her monthly payments to $50 until her circumstances changed. But the judge would never be able to modify the $200,000 restitution order.

Under MVRA, the second scenario in which courts are permitted to weigh a defendant’s financial circumstances is in the event of nonpayment, when a court decides whether to take punitive measures for failure to meet restitution obligations.¹⁴¹18 U.S.C. § 3612(g)–(h).
In response to nonpayment, courts have a range of measures at their disposal. Most notably, courts may revoke community supervision and reincarcerate if they determine that the failure to pay was “willful,” in accordance with the Supreme Court’s decision in Bearden v. Georgia,¹⁴²Bearden v. Georgia, 461 U.S. 660 (1983) (holding that a sentencing court cannot properly revoke supervision absent evidence and findings that defendant “willfully” refused to pay their financial obligation and failed to make sufficient bona fide efforts to find work).
to be discussed more fully in Section III.A.¹⁴³See infra Section III.A.
Loss of liberty is the only circumstance under MVRA in which the court is mandated to consider “the defendant’s employment status, earning ability, financial resources, the willfulness in failing to comply with the fine or restitution order, and any other circumstances . . . .”¹⁴⁴18 U.S.C. § 3613A; see also 18 U.S.C. § 3664(a) (“[T]he court shall order the probation officer to obtain and include in its presentence report, or in a separate report, as the court may direct, information sufficient for the court to exercise its discretion in fashioning a restitution order. The report shall include . . . information relating to the economic circumstances of each defendant.”) Although information about a defendant’s financial circumstances is required to be included in a federal presentence report, it is not a permissible factor to consider in imposing restitution. 18 U.S.C. § 3664(a).

Congress clearly articulated MVRA’s twin primary aims: to recognize harm to crime victims and to hold defendants accountable.¹⁴⁵ S. Rep. No. 104-179, at 12 (1995). (“This legislation is needed to ensure that the loss to crime victims is recognized, and that they receive the restitution that they are due. It is also necessary to ensure that the offender realizes the damage caused by the offense and pays the debt owed to the victim as well as to society.”).
It is important to note that Congress acknowledged that “mandatory victim restitution ‘will not lead to any appreciable increase in compensation to victims of crime,’ ”¹⁴⁶Id. at 18.
citing the high number of indigent defendants in the criminal system. Yet, the law was still enacted on the hope that the “small cadre [of offenders with] a significant amount of dollars” and those who might be able to improve their financial circumstances after sentencing justified this seminal change in the federal restitution structure¹⁴⁷See Dickman, supra note 9, at 1691.
This justification, however, has little merit because, in practice, courts are mandated to impose restitution without consideration of defendants’ ability to pay and the vast majority of those impacted are indigent, which Congress readily acknowledged at the time they passed MVRA.

MVRA also expanded restitution in another major way—in the power of the federal government to monitor and enforce mandatory restitution orders. Its enforcement power is primarily codified in a separate provision governing the collection of restitution.¹⁴⁸18 U.S.C. § 3664.
The federal government can collect restitution debt by going after various sources of income, property, and other assets.¹⁴⁹ Charles Doyle, Cong. Rsch. Serv., RL34138, Restitution in Federal Criminal Cases 1, 25–26 (2019); U.S. Gov’t Accountability Off., GAO-20-676R, Federal Criminal Restitution: Department of Justice Has Ongoing Efforts to Improve Its Oversight of the Collection of Restitution and Tracking the Use of Forfeited Assets 3 (2020).
Since the creation of the DOJ’s Financial Litigation Unit (FLU), it has invested substantial resources in doing so aggressively across the country.¹⁵⁰See U.S. Gov’t Accountability Off., supra note 43, at 12.
Although it is housed in the DOJ’s Civil Division, the FLU’s primary function is “to litigate and enforce the collection of criminal and civil debts owed to the United States, including criminal restitution . . . .”¹⁵¹Civil Division, U.S. Att’y’s Off. E. Dist. of Va. (Oct. 22, 2018), https://web.archive.org/web/20200424061616/https://www.justice.gov/usao-edva/civil-division [perma.cc/39RJ-HDFZ].
The FLU has the power to do so for twenty years from the filing of a judgement, on top of any period of incarceration served.¹⁵²See 18 U.S.C. § 3613(b).
When a defendant defaults on a restitution order, a district court may: revoke community supervision (either probation or supervised release); impose a period of incarceration; hold the defendant in contempt; modify a payment schedule; enter a restraining order or injunction; or “take any other action necessary to obtain compliance with the order of a fine or restitution.”¹⁵³Id. § 3613A(a)(1).
As discussed above, an FLU action is the first instance in which the court can consider an individual’s financial circumstances.¹⁵⁴See id. § 3613A(a)(2); United States v. Salas-Fernandez, 620 F.3d 45, 49 (1st Cir. 2010) (“But ‘consideration,’ in this context, does not require any elaborate formality. In making a restitutionary order, the court need not make explicit findings or even indicate what it has considered; it suffices if the record contains relevant information about, say, the defendant’s income and assets.” (citations omitted)).
Probation officers are heavily involved in the enforcement process. Officers monitor a defendant’s compliance and financial standing, recommend monetary penalties, request repayment modifications, and scrutinize defendants’ spending behaviors.¹⁵⁵See 18 U.S.C. § 3664(m)(2); Chapter 3: Financial Requirements and Restrictions (Probation and Supervised Release Conditions), U.S. Cts., https://www.uscourts.gov/services-forms/financial-requirements-restrictions-probation-supervised-release-conditions [perma.cc/YT9V-2B3R].

Meanwhile, the landscape of federal sentencing was changing in a different way. MVRA’s approach to criminal restitution was at odds with the movement for discretionary sentencing in federal courts following United States v. Booker.¹⁵⁶United States v. Booker, 543 U.S. 220 (2005).
Prior to Booker, the Sentencing Reform Act of 1984 created draconian sentencing measures that required judges to follow mandatory sentencing guidelines without consideration for a person’s background or the circumstances of the offense.¹⁵⁷Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1987, 1990 (codified in scattered sections of 18 U.S.C.); see Booker, 543 U.S. at 221.
In response to growing discontent over the mandatory and seemingly arbitrary nature of the sentencing guidelines, the Supreme Court decision heralded a new era for federal sentencing that promoted discretionary, individualized sentencing.¹⁵⁸Jelani Jefferson Exum & Paul J. Hofer, A Booker Effect?, 28 Fed. Sent’g Rep. 155, 155 (2016).
By making federal guidelines advisory, instead of mandatory, judges were permitted wide discretion to balance a variety of sentencing factors before imposing sentences, including “the need to provide restitution,” and were empowered to reject guidelines that did not fit with the circumstances of the case or the defendant’s history.¹⁵⁹18 U.S.C. § 3553(a).
The MVRA scheme, which continues to treat restitution as mandatory in most criminal cases, is, notably, out of step from the discretionary sentencing scheme adopted by federal courts.

Unforgiving restitution laws have proliferated at the state level, inspired in large part by the passage and entrenchment of MVRA.¹⁶⁰See supra note 35; see also Dana A. Waterman, Note, A Defendant’s Ability to Pay: The Key to Unlocking the Door of Restitution Debt, 106 Iowa L. Rev. 455, 461 n. 52 (2020) (citing state cases discussing ways in which states have followed provisions of MVRA).
Several states recently passed mandatory restitution statutes, pushing the limits of what defendants can be held accountable for and further escalating criminal debt on a broader scale. Mandatory restitution has also expanded with equal force in juvenile courts, with at least fourteen states requiring that judges order restitution for youth where there are quantifiable damages.¹⁶¹See Leslie Paik, Reflection on the Rhetoric and Realities of Restitution, 4 UCLA Crim. Just. L. Rev. 247 (2020); Ariz. Rev. Stat. Ann. § 8-344(A) (2023); Alaska Stat. Ann. § 47.12.120(b)(4)(A) (West 2023); Cal. Welf. & Inst. Code § 730.6(a)(1) (West 2023); Colo. Rev. Stat. Ann. § 19-2.5-1104 (West 2023); Ga. Code Ann. § 17-14-5 (2020); Mich. Comp. Laws Ann. §§ 712A.30(2) (2024); 780.766(2); 780.794(2); Nev. Rev. Stat. Ann. § 62E.560 (2023); N.H. Rev. Stat. Ann. § 169-B:19 (2022); N.D. Const. art. 1, § 25(1)(n); Ohio Const. art. I, § 10a(A)(7); Or. Const. art. I, §§ 42(1)(d), (6)(b)); see also Or. Rev. Stat. Ann. § 419C.450(1)(a) (2023); S.C. Const. art. I, § 24(A)(9); Vt. Stat. Ann. tit. 33, § 5235(a) (West 2021); Va. Code Ann. § 16.1-278.8(B) (2020).
In Michigan, for example, juvenile restitution is mandatory even for youth with no ability to pay, including for charges that are ultimately dropped in the course of plea negotiations. This remains the case despite a 2023 overhaul of the Michigan juvenile justice system that largely eliminated court fines and fees for youth and their families.¹⁶²See 2023 Mich. Pub. Acts 124 (effective Oct. 1, 2024).
As Congress and state legislatures begin the slow process of rolling back draconian mandatory sentencing statutes and reconsidering mandatory court costs, mandatory restitution remains.

III. Dismantling Justifications for Restitution

Turning to the critical impacts of criminal restitution’s reach on those involved in the criminal legal system, this Part debunks two fundamental myths upon which restitution policies and practices rest: 1) that restitution is beneficial to defendants and furthers important goals in our criminal legal system, including rehabilitation and accountability; and 2) that it serves victims by making them economically whole. Neither myth is true. ¹⁶³See Dickman, supra note 9, at 1694, 1701.

This Part examines the detrimental consequences of criminal restitution in practice for defendants and victims alike. As with other forms of financial punishment, restitution negatively affects defendants in criminal cases in virtually all aspects of their lives, from their liberty to their ability to secure safe housing.¹⁶⁴See Harris et al., supra note 4, at 1759, 1762.
Criminal restitution is a tool for extracting wealth from the most marginalized—particularly for communities of color already impacted by harsh and disproportionate inequities in the criminal legal system.¹⁶⁵See O’Neill et al., supra note 39, at 57; Bing et al., supra note 7, at 120.
In effect, restitution is a form of racialized punishment that perpetuates disparities in wealth accumulation and often keeps defendants entrapped in a never-ending cycle of debt, poverty, and involvement in the criminal legal system.¹⁶⁶See Friedman, supra note 41, at 178. California, Texas, Florida, New York, Georgia, Ohio, Pennsylvania, Michigan, Illinois, Arizona, North Carolina, Louisiana, Virginia, Alabama, and Missouri all have jurisdictions that arrest people for failure to pay. More so, Black defendants are “five times more likely than white defendants” to require a public defender. Alicia Bannon, Mitali Nagrecha & Rebekah Diller, Brennan Ctr. for Just., Criminal Justice Debt: A Barrier to Reentry 1, 4 (2010), https://www.brennancenter.org/sites/default/files/2019-08/Report_Criminal-Justice-Debt-%20A-Barrier-Reentry.pdf [perma.cc/NAB7-B4RS].
Yet, despite this country’s recent reckoning with the deep flaws of the criminal legal system, particularly relating to race, the injustice of criminal restitution has continued to draw little scrutiny. For victims, those for whom restitution laws were primarily enacted to support, criminal restitution has also failed, leaving them dissatisfied on various levels and preventing them from reaching finality and closure.¹⁶⁷See Manaugh, supra note 42, at 372.
This Part delves into what those underappreciated realities look like on both sides.

Myth #1: Restitution Is Beneficial to Defendants

The modern restitution regime is premised on the false assumptions that the practice benefits defendants and advances widely valued goals of rehabilitation and accountability in the criminal legal system. But, in reality, the opposite is true. Restitution in criminal courts directly undermines the necessary steps for defendants to successfully reenter society. Because the overwhelming majority of those involved in the criminal system are indigent,¹⁶⁸See, e.g., Freeman et al., supra note 60, at 13 tbl.3.
the imposition of restitution shackles defendants long after they serve their sentences. Consistent with other monetary sanctions, those unable to satisfy a restitution order face a range of severe collateral consequences—“[t]he most obvious illustration of how restitution is treated as a criminal punishment . . . .”¹⁶⁹Lollar, supra note 11, at 123.
Mandatory restitution laws only exacerbate these impacts on the indigent, as judges are permitted no discretion to adjust the restitution amounts requested (as long as provable by the government) or to consider whether a defendant can pay them.¹⁷⁰18 U.S.C. § 3663A(a)–(c) (requiring courts to order restitution for certain offenses without room for judicial discretion).
Those too poor to pay off their criminal restitution face an excessive punishment for their lack of financial means.

Those entangled in the criminal legal system already face a lifetime of barriers. They endure a series of collateral consequences for having a record, including significant barriers on employment, lack of access to many public benefits, and disenfranchisement, among many others; even the most minor convictions, such as traffic violations, can pose enormous challenges for defendants.¹⁷¹See Lollar, supra note 11, at 123–25; see, e.g., Colo. Rev. Stat. § 8-2-130(3)(b) (2023); Ariz. Rev. Stat. Ann. § 13-904(A) (1956); Tenn. Code Ann. § 40-29-204; 21 U.S.C. § 862 (2018).
A criminal conviction can be a permanent mark on someone’s searchable public record for many years, enduring long after sentencing and incarceration. Barriers to reintegration are compounded for those who face restitution obligations. They face a series of civil penalties—wage garnishment, seizure of property, suspension of (or prohibition on obtaining) driver’s licenses, professional licenses, public housing, and other benefits such as food stamps¹⁷²Bannon et al., supra note 3, at 27–29; Colgan, supra note 11, at 7–8; see, e.g., N.H. Rev. Stat. Ann. § 651:64, III (2016); Wis. Stat. § 800.095(1)(a) (2019); Ala. R. Crim. P. 26.11(i)(3) (2023); 225 Ill. Comp. Stat. 6/55 (2022).
—as well as criminal penalties, because many courts consider a failure to pay restitution a failure to complete the criminal sentence.¹⁷³See Lollar, supra note 11, at 98, 108.
What results are critical barriers for defendants to reintegrate into society after a criminal case has concluded.

Threat of Incarceration and Perpetual Surveillance

Perhaps the most severe consequence for failure to pay a restitution order is the threat of incarceration. In practice, courts rely on incarceration as “the primary mechanism” for punishing the nonpayment of criminal debt.¹⁷⁴Courtney E. Lollar, Eliminating the Criminal Debt Exception for Debtors’ Prisons, 98 N.C. L. Rev. 427, 430 (2020).
Every day, people go to jail because they fail to pay court-imposed debts.¹⁷⁵See Tim Curry, Why Are We Still Sending People to Jail for Being Poor? It’s Time to Truly Abolish Debtors’ Prisons, ABA (Apr. 12, 2023), https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/economic-issues-in-criminal-justice/why-are-we-still-sending-people-to-jail-for-being-poor [perma.cc/4ZHB-AS7D].
Despite constitutional protections in place to prevent this reality, the data suggest that nearly one-quarter of those incarcerated are incarcerated due to a failure to pay their monetary sanctions, including restitution.¹⁷⁶Lollar, supra note 174, at 427.
In Bearden v. Georgia, the Supreme Court ruled that it is unconstitutional for a sentencing court to impose incarceration or revoke probation for failure to pay a financial criminal debt unless “the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay.”¹⁷⁷Bearden v. Georgia, 461 U.S. 660, 668 (1983) (emphasis added).
The Court added: “If the probationer . . . failed to make sufficient bona fide efforts to seek employment or borrow money to pay, the State is justified in using imprisonment as a sanction to enforce collection.”¹⁷⁸Id. at 660 (emphasis added).

The protections Bearden established are woefully inadequate in practice.¹⁷⁹See Jaclyn Kurin, Indebted to Injustice: The Meaning of “Willfulness” in a Georgia v. Bearden Ability to Pay Hearing, 27 Geo. Mason U. C.R.L.J. 265, 297–301 (2017).
The Supreme Court has yet to provide clear guidance on how courts should determine whether an individual has acted willfully, which effectively grants lower courts wide discretion in evaluating whether this standard is met. In reality, defendants who cannot pay are incarcerated with regularity either because courts have managed to wholly disregard Bearden or because they have followed a loose interpretation of whether one’s failure to pay a debt is “willful.”¹⁸⁰Bearden, 461 U.S. at 672; see Sobol, supra note 5, at 512 (“Despite the statutory and case law prohibitions, the incarceration of indigents for failure to pay has increased along with the growth of criminal justice debt.”); Lollar, supra note 174, at 432; see, e.g., Bryant v. State, No. CR-22-51, 2022 WL 4361286, at *8 (Ark. Ct. App. Sept. 21, 2022) (finding failure to pay was willful by looking at “his expenditures on nonessentials, such as cigarettes and a cell phone”); State v. Gamer, 283 A.3d 16, 24–26 (Conn. App. Ct. 2022) (finding failure to pay was willful based on evidence that the defendant was aware he had to pay and that he did not pay).
Some judges may not even inquire about current financial circumstances or inform defendants of their right to an ability-to-pay hearing before sending them off to jail for not paying.¹⁸¹See Michelle Chen, What Kind of Justice Can There Be When Judges Have to Find Defendants Guilty to Keep Their Court Open?, Nation (July 6, 2016), https://www.thenation.com/article/archive/what-kind-of-justice-can-there-be-when-judges-have-to-find-defendants-guilty-to-keep-their-court-open [perma.cc/L29Y-S697].
Even those judges who acknowledge Bearden find ways around it by scrutinizing and questioning the credibility of defendants who state they are unable to obtain employment or find the money to make their restitution payments.¹⁸² ACLU, In for a Penny: The Rise of America’s New Debtors’ Prisons 34 (2010); Shapiro, supra note 56.
The assumption on the part of many judges, whose lived experiences are often very different from the people before them, is that defendants are not being diligent enough when they claim to be unable to pay their restitution obligations, resulting in incarceration as a common tool in addressing nonpayment.¹⁸³ Danielle Root, Jake Faleschini & Grace Oyenubi, Ctr. for Am. Progress, Building a More Inclusive Federal Judiciary (2019), https://americanprogress.org/issues/courts/reports/2019/10/03/475359/building-inclusive-federal-judiciary [perma.cc/H8W3-JWF5]; Ctr. for Am. Progress, Democracy & Gov’t Reform Team, Examining the Demographic Compositions of U.S. Circuit and District Courts 1–2 (2020), https://www.americanprogress.org/article/examining-demographic-compositions-u-s-circuit-district-courts [perma.cc/EBL4-Y8RT]; see Shapiro, supra note 13.
Yet, when indigence is the reason for nonpayment, incarceration serves no legitimate penological purpose and only diminishes opportunities to attain stability following a criminal conviction. When people go to jail, their incarceration, even when brief, sets off a series of harmful ripple effects to their wellbeing. People are deprived of the ability to work, support their families, access public benefits, and more—all while interest and other penalties are piled on, including fees for the cost of their reincarceration.¹⁸⁴Melissa Li, From Prisons to Communities: Confronting Re-Entry Challenges and Social Inequality, Am. Psych. Ass’n (Mar. 2018), https://www.apa.org/pi/ses/resources/indicator/2018/03/prisons-to-communities [perma.cc/Z5HW-ESKL]; Bannon et al., supra note 3, at 7, 11, 17–18.
These detrimental consequences are entirely counterproductive to achieving the aims of rehabilitation and accountability when individuals are faced with the financial impossibility of meeting their restitution obligations.

Discrepancies in how judges determine these calculations about ability to pay are prevalent, particularly at the state level.¹⁸⁵Bannon et al., supra note 3, at 10–15.
All states require that courts consider ability to pay before determining willful noncompliance; there is, however, considerable variability in how those factual determinations are made.¹⁸⁶Brittany Friedman et al., What Is Wrong with Monetary Sanctions?: Directions for Policy, Practice, and Research, Russell Sage Found. J. Soc. Scis., Jan. 2022, at 224.; see also Harris et al., supra note 4, at 1788.
In United States v. Montgomery, despite evidence that the defendant had made several attempts to find employment and that there were concerns about her employability because of physical and mental illness, the Eighth Circuit affirmed a ruling that she had “willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay.”¹⁸⁷United States v. Montgomery, 532 F.3d 811, 813–14 (8th Cir. 2008) (quoting Bearden v. Georgia, 461 U.S. 660, 672 (1983)).
Although debtors’ prisons have been formally outlawed since the nineteenth century,¹⁸⁸Curry, supra note 175.
the reincarceration for failure to pay restitution demonstrates that, in practice, these prisons are still alive and well throughout the criminal legal system. Indigent defendants pay a higher price for their transgressions simply because of their poverty.¹⁸⁹Sobol, supra note 5, at 492; Colgan, supra note 11, at 7–9.
For example, in Benton County, Washington, approximately one-quarter of those in jail for misdemeanor offenses were there only because they were financially unable to pay off their criminal debt, according to a National Public Radio investigation.¹⁹⁰Shapiro, supra note 13.

Aside from incarceration, outstanding restitution orders are also a basis for perpetual criminal justice monitoring and supervision. Defendants are typically not deemed to have completed their community supervision until restitution debt is satisfied, or at least substantial efforts are made to this end. Accordingly, supervision may be prolonged and modified to include added conditions, increasing the chances of supervision violations and harsher punishment if violations occur.¹⁹¹Pattillo & Kirk, supra note 69, at 55.
In many jurisdictions, probation alone comes with added financial costs, such as charges for ankle monitoring and drug testing.¹⁹²See Kate Weisburd, Carceral Control: A Nationwide Survey of Criminal Court Supervision Rules, 58 Harv. C.R.-C.L. L. Rev. 1, 18–19 (2023).
Courts routinely extend probation or supervised release and add conditions to monitor restitution compliance as a sanction for nonpayment.¹⁹³See 18 U.S.C. § 3583; Sharon Brett, Neda Khoshkhoo & Mitali Nagrecha, Crim. Just. Pol’y Program Harv. L. Sch., Paying on Probation: How Financial Sanctions Intersect with Probation to Target, Trap, and Punish People Who Cannot Pay 7 (2020).
Although community supervision was conceptualized as an alternative to incarceration, it is now a leading driver of mass incarceration.¹⁹⁴Weisburd, supra note 192, at 2; Council of State Gov’ts, Confined and Costly: How Supervision Violations Are Filling Prisons and Burdening Budgets (2019) (finding that 45 percent of state prison admissions are the result of supervision violations for new offenses or technical violations, such as missing an appointment with a probation officer).

Given the widespread punishment that can result from criminal restitution, imposing it on those who do not currently, and may never, have the ability to pay substantially impedes the otherwise noble goals of rehabilitation and successful reentry for defendants.¹⁹⁵Acker, supra note 9, at 235.
Unpaid restitution is an enormous barrier to the reintegration process. Each time someone goes to jail for the inability to pay, they fall behind in rent payments and lose housing, employment, and so on, making it impossible for them to attain any semblance of stability upon their release. This, in turn, has long-term negative impacts on the community, including victims.¹⁹⁶Id.
When the restitution ordered exceeds a defendant’s financial means, it legitimates and maintains a regime of second-class citizenship for those who are system involved, pushing low-income defendants into greater financial insecurity.

Restitution as Wealth Extraction

Criminal restitution amplifies economic inequalities in the criminal system. Because criminal restitution “directly bear[s] on wealth,” it reinforces existing patterns of economic injustice, particularly along racial lines.¹⁹⁷Friedman et al., supra note 186, at 223.
Involvement in the criminal legal system alone generally leads to a substantial reduction in economic opportunities. Criminal restitution further compromises economic mobility, keeping people stuck in continuing cycles of criminal debt and court surveillance. Existing studies have examined wealth extraction largely in the context of fines and fees or lumped restitution into a broader discussion of monetary sanctions¹⁹⁸See, e.g., Harris et al., supra note 4; O’Neill et al., supra note 39.
This Article concentrates solely on the wealth-extracting impacts of criminal restitution—not only for those individuals involved but for their families and greater communities.

As discussed in Section III.A, restitution orders can impose enormous financial burdens on defendants, the vast majority of whom are indigent, preventing them from attaining any semblance of economic stability after their release. Restitution debt contributes to the extraction of wealth for those who are system involved in three distinct ways: (1) by substantially reducing opportunities for accumulating wealth, including employment, credit, and housing; (2) by siphoning any already-existing income; and (3) by increasing involvement in the criminal system.¹⁹⁹Harris et al., supra note 4, at 1756.

First, criminal restitution substantially reduces opportunities and resources for economic stability and growth. In particular, it constrains people’s ability to access “status-affirming” opportunities and institutions, such as employment, education, housing, and economic markets, to improve their future life chances upon completion of their sentence.²⁰⁰Id. at 1777.
To pay off a restitution order, one typically needs to have a job. As discussed, restitution orders, coupled with a criminal record, severely limit employment prospects and earning abilities for those who are system involved. Those limitations are especially devastating for individuals who serve time in prison and have been incapacitated for an extended period of time, depriving them from the opportunity to work and attain skills that improve employability.²⁰¹Although people who are incarcerated may be able to contribute to their restitution orders while incarcerated, prison wages are so meager that, even if they worked a substantial number of hours and contributed all of their pay toward their restitution obligation, it would not likely put a dent in the overall amount. Restitution, U.S. Att’y’s Off. W. Dist. N.Y., https://www.justice.gov/usao-wdny/restitution [perma.cc/6UVE-YJJZ] (last updated Jan. 24, 2022).
If an individual who serves time in prison is able to find work at all upon release, “it is often temporary, part-time, and low paying, thus lacking in prospects for upward mobility.”²⁰²Cameron Kimble & Ames Grawert, Collateral Consequences and the Enduring Nature of Punishment, Brennan Ctr. for Just. (June 21, 2021), https://www.brennancenter.org/our-work/analysis-opinion/collateral-consequences-and-enduring-nature-punishment [perma.cc/7MED-UVK3].
On average, prison leads incarcerated individuals to face a “52% reduction in annual earnings and little earnings growth for the rest of their lives, amounting to a loss of $500,000 over several decades.”²⁰³Ames Grawert & Terry-Ann Craigie, Mass Incarceration Has Been a Driving Force of Economic Inequality, Brennan Ctr. for Just. (Nov. 4, 2020), https://www.brennancenter.org/our-work/analysis-opinion/mass-incarceration-has-been-driving-force-economic-inequality [perma.cc/93G4-LJAR].
Even those who manage to find more stable employment often face a ceiling on their advancement as they are “limited by background screening and licensing rules that make progress in one’s career that much more difficult at every step.”²⁰⁴Kimble & Grawert, supra note 202.
More than twenty-seven thousand rules bar people with criminal records from holding professional licenses.²⁰⁵Id.; see also Walter Gellhorn, The Abuse of Occupational Licensing, 44 U. Chi. L. Rev. 6, 13 (1976) (“In some states virtually the only ‘profession’ open to a once-convicted felon is that of burglar; he is barred from other activities because he is presumed to be a person of bad moral character, regardless of the nature of the felony or its relevance to his intended occupation.”).
Individuals with criminal debt, including restitution, are less likely to be considered for promotions and other opportunities for economic growth, leaving their incomes stagnant.²⁰⁶See Lollar, supra note 11, at 108.

In addition, outstanding restitution orders can also impact financial credit, presenting yet another hurdle that substantially reduces opportunities for economic stability and growth. Many states allow the reporting of restitution debt on a credit report,²⁰⁷Bannon et al., supra note 3, at 27–28; see, e.g., Utah Code Ann. § 504 (2021); Vt. Stat. Ann. tit. 13, § 5362(6)(a) (2018).
which can stain an individual’s credit for up to seven years.²⁰⁸15 U.S.C. § 1681c(a).
Poor credit creates another layer of wealth-extracting harm by posing obstacles for people to secure employment, housing, a car, a bank account, and other resources. Furthermore, possession of restitution debt limits access to public benefits to which they would otherwise be entitled by virtue of their economic circumstances. For example, outstanding restitution often disqualifies people from receiving government assistance, including low-income housing and basic public benefits, such as food stamps, another major obstacle to attaining economic stability.²⁰⁹Bannon et al., supra note 3, at 27–29; see supra note 172 and accompanying text.
In addition, most states suspend basic civil and fundamental rights until a restitution order is fully satisfied—impacting the right to vote, serve on a jury, run for public office, and possess a firearm.²¹⁰Lollar, supra note 11, at 127.

Second, restitution orders substantially diminish existing income and create long-term debt in the process. Even those who can find a job—now worse off with a criminal conviction and limited earning potential—are typically low-wage earners living on limited income.²¹¹ Terry-Ann Craigie, Ames Grawert & Cameron Kimble, Brennan Ctr. for Just., Conviction, Imprisonment and Lost Earnings: How Involvement with the Criminal Justice System Deepens Inequality (2020), https://www.brennancenter.org/our-work/research-reports/conviction-imprisonment-and-lost-earnings-how-involvement-criminal [perma.cc/WP95-RANX].
Restitution payments reduce take-home pay and household income overall, limiting opportunities to “accumulate savings, make investments, or purchase assets—all of which are vital to building wealth.”²¹²See Harris et al., supra note 4, at 1778.
Even for those who manage to find the money to pay off their obligations, restitution orders can still have vast consequences for wealth accumulation as those efforts siphon money needed for other critical purposes, affecting their ability to meet basic needs, build income, and attain stability.²¹³See Sobol, supra note 5, at 520.
 Studies show that people who try to pay their restitution often make critical tradeoffs to do so—paying restitution in exchange for basics such as food, medicine, and clothing—usually because they are fearful of the many punitive consequences of nonpayment.²¹⁴See Colgan, supra note 11, at 8; see also Council of Econ. Advisers, supra note 50, at 4 (“High fines and fee payments may force the indigent formerly incarcerated to make difficult trade-offs between paying court debt and other necessary purchases.”).
In a study surveying Alabama residents and their experiences with criminal debt generally, nearly 83 percent of defendants admitted to forgoing necessities including food, rent, and medical bills to pay court debt.²¹⁵ Ala. Appleseed Ctr. for L. & Just., Under Pressure 31, https://www.alabamaappleseed.org/wp-content/uploads/2018/10/AA1240-FinesandFees-10-10-FINAL.pdf%20 [perma.cc/XNS7-YZTB].
Almost two-thirds, consequently, sought money or food assistance from a faith-based charities or organizations.²¹⁶Id.
The widespread failure to consider ability to pay in restitution determinations compounds the crisis. Even those who manage to find employment may quickly find themselves in court-imposed debt when restitution obligations are far more substantial relative to one’s earnings. As the use and amount of restitution orders have grown, in addition to “poverty penalties,” so too have the number of people facing criminal restitution debt.²¹⁷Bannon et al., supra note 3, at 1.

Restitution payments may be made voluntarily, but they are also often collected involuntarily. One of the most powerful mechanisms for collecting restitution debt is wage garnishment, where earnings are withheld and sent directly to the government.²¹⁸See Lollar, supra note 174, at 434–35; see, e.g., Ala. Code § 15-18-143 (LexisNexis 1975).
Any income or assets can be garnished, forfeited, or seized by the government.²¹⁹ U.S. Gov’t Accountability Off., GAO-20-676R, Federal Criminal Restitution: Department of Justice Has Ongoing Efforts to Improve Its Oversight of the Collection of Restitution and Tracking the Use of Forfeited Assets 1, 3 (2020).
Federal and state governments also commonly seize retirement accounts, property, and other assets.²²⁰See Bannon et al., supra note 3, at 27, 56 n.187; United States v. Shkreli, 47 F.4th 65, 68 (2d Cir. 2022).
An outstanding restitution order can also convert into its own civil judgment and lien against an individual, which can never be discharged in bankruptcy court.²²¹11 U.S.C. § 523(a)(11); Restitution Process, DOJ (Oct. 10, 2023), https://www.justice.gov/criminal/criminal-vns/restitution-process [perma.cc/KV8E-ZCZ3] (“The Court’s restitution order on your behalf also acts as a lien in favor of the United States against all property owned by the defendant.”); Nationwide Ins. Co. of Am. v. Tipton, 308 Cal. Rptr. 3d 881 (Ct. App. 2023).
The IRS is empowered to go after individuals with separate tax penalties for failure to pay restitution.²²²I.R.C. § 20.1.2.3.8.9.
Such practices may also create a disincentive for defendants, who know that the government is surveilling their earnings, to make any efforts to try to build income. In a study examining the impacts of monetary sanctions on system-involved people in Washington State, for example, respondents reported that “the threat of lost wages and garnishment created an incentive for them to avoid work” altogether.²²³ Beckett et al., supra note 70, at 3.

Third, outstanding restitution debt can trigger perpetual entanglement with the criminal legal system, as explored in Section III.A.1, which also serves as a critical source of wealth extraction for those who are indigent. This continued shadow of surveillance is costly for defendants. Fees associated with supervision, such as electronic monitoring and mandated treatment programs, can be onerous. When they are prolonged, supervision fees can trigger deeper criminal debt.²²⁴ Brett et al., supra note 193, at 11.
Extended supervision results in increased costs from interest and disruptive court reporting requirements, taking people away from work, school, and their families, and piling on costs of lost wages, childcare, and the additional costs of part-time education. In contrast, people with financial means who can pay their restitution as ordered, without penalty, will have their cases closed and no further involvement in the criminal legal system.

Racial Wealth Divide and Impact on Communities

Criminal restitution financially burdens and punishes people of color, particularly African Americans, at alarmingly disproportionate rates.²²⁵See generally Cortney E. Lollar, The Costs of the Punishment Clause, 106 Minn. L. Rev. 1827 (2022).
They face higher penalties and harsher punishment as a consequence of an inability to pay.²²⁶Id. at 1849.
The pervasive nature of systemic racial bias is nowhere more evident than in the system of monetary sanctions, a system rooted in the deep, racialized history of social control, starting with slavery—the darkest form of wealth extraction.²²⁷See id.; see also Deborah N. Archer, Reparations and the Right to Return, 45 N.Y.U. Rev. L. & Soc. Change 343, 344–45 (2021).
Long after the abolition of slavery, the history of economic exclusion for Black people continued to thrive with the creation of slave codes, Black codes, and Jim Crow laws, resulting in the persistent criminalization of Black people and stripping them of opportunities for economic advancement.²²⁸Nadra Kareem Nittle, How the Black Codes Limited African American Progress After the Civil War, History (Aug. 4, 2023), https://www.history.com/news/black-codes-reconstruction-slavery [perma.cc/92BQ-HGZB].
The system of monetary sanctions in criminal courts, including restitution, is simply a modern-day manifestation of America’s racialized history of wealth extraction.²²⁹Lollar, supra note 225, at 1832.
“Although the criminally punished are no longer leased to corporations if they cannot pay their fees and fines, they are nonetheless saddled with a substantial financial debt, one that enhances their poverty and impairs their ability to extract themselves from the reach of the criminal justice system.”²³⁰Harris et al., supra note 4, at 1791.

Current racial wealth disparities further underscore the insidious forebearers of restitution. Since the 1990s, the income gap between white and nonwhite individuals in the United States has grown dramatically, with Black families estimated to have “just one-tenth the net worth of White families.”²³¹Bing et al., supra note 7, at 121 (citing Bradley L. Hardy & Trevon D. Logan, Hamilton Project, Racial Inequality Amid the COVID-19 Crisis (2020), https://www.hamiltonproject.org/wp-content/uploads/2023/01/EA_HardyLogan_LO_8.12.pdf [perma.cc/2XTQ-G5NF]).
Recent statistics reveal that the average white household is worth approximately $190,000, while median household wealth is about $24,000 for African American families and $36,100 for Latinx families.²³²Friedman et al., supra note 186, at 226.
“Although parental wealth, inheritance, and investment decisions help to explain the racial gap in household wealth, some of the black-white wealth gap remains unexplained.”²³³Harris et al., supra note 4, at 1791.
Factoring in the amount of liquid savings available further amplifies these enormous disparities in wealth: Black and Latinx families typically have less than $8,000 on average.²³⁴Friedman et al., supra note 186, at 226.
At the same time, the COVID-19 pandemic hit people of color the hardest, experiencing the highest rates of unemployment and disproportionate rates of serious illness and death.²³⁵See Health Notes: People of Color Suffer Disproportionate Impact of COVID-19 Pandemic, Yale Sch. Med. (Sept. 3, 2020), https://medicine.yale.edu/news-article/health-notes-people-of-color-suffer-disproportionate-impact-of-covid-19-pandemic [perma.cc/8KSB-BAUC]; Connor Maxwell & Danyelle Solomon, The Economic Fallout of the Coronavirus for People of Color, Ctr. Am. Progress (Apr. 14, 2020), https://www.americanprogress.org/article/economic-fallout-coronavirus-people-color/#:~:text=Overall%20U.S.%20unemployment%20peaked%20at,nationally%20since%20the%20Great%20Depression [perma.cc/CW3L-PM7N].
Such disparities only widened the racial wealth gap and further contributed to economic disadvantage for people of color.

That the criminal legal system produces racial disparities at every stage—from police contact and arrest through sentencing and execution—is well-documented.²³⁶O’Neill et al., supra note 39, at 44.
Although studies on how restitution is specifically imposed and enforced along racial lines do not appear to exist, research on monetary sanctions more broadly suggests that the financial burdens of criminal restitution also fall harshest on people of color.²³⁷Bing et al., supra note 7, at 120; Pattillo & Kirk, supra note 140, at 901 n.8.
Black and Latinx defendants receive harsher monetary penalties at sentencing than their white counterparts and are disproportionately subject to heightened court surveillance and punishment when those monetary sanctions are unpaid.²³⁸See O’Neill et al., supra note 39, at 43–44.
For example, in a study that analyzed data from criminal cases in Texas, records showed that Black defendants had higher balances but paid less after a period of ninety days than both Latinx and white defendants.²³⁹Bing et al., supra note 7, at 129.
Because Black and Latinx defendants, on average, have less capital than white defendants, “Black and Latinx defendants have a substantially harder time paying off their fines and fees than White defendants,” which leads them to spend a greater amount of time and money trying to resolve their monetary sanctions.²⁴⁰Id. at 121, 128.
Restitution and other monetary sanctions impose a financial burden felt not just by individuals who are directly involved in the criminal legal system but also their families, perpetuating economic challenges for future generations.²⁴¹Pattillo & Kirk, supra note 69, at 55; Saneta deVuono-powell, Chris Schweidler, Alicia Walters & Azadeh Zohrabi, Ella Baker Ctr., Forward Together & Rsch. Action Design, Who Pays?: The True Cost of Incarceration on Families 11 (2015), http://ellabakercenter.org/who-pays-the-true-cost-of-incarceration-on-families [perma.cc/2JCS-ZBBJ].
Monetary sanctions leave people of color, who typically have less access to capital and credit, tethered to the criminal legal system for longer than their white counterparts, further inhibiting long-term wealth accumulation.²⁴²Bing et al., supra note 7, at 121.
Such empirically driven scholarship suggests that the pervasive expansion of criminal restitution likely contributed to the large racial gaps in household wealth.

Not only does criminal restitution reduce wealth for individual households of color but it inferentially follows that restitution reproduces poverty for entire communities of color. Historic and contemporary racism in this country, among other factors, helped create racially segregated communities. Poverty and social disadvantage are concentrated in predominantly nonwhite neighborhoods.²⁴³O’Neill et al., supra note 39, at 43 (“[P]overty, inequality, and the accumulation of disadvantage that accompany them are concentrated in resource-poor neighborhoods where residents’ access to educational resources, labor markets, and financial institutions that could improve their lives is often limited . . . .” (footnote omitted)).
Communities with a higher number of people of color have greater contact with the criminal legal system and, generally, less household wealth.²⁴⁴ Christian E. Weller, Akua Amaning & Rebecca Vallas, Ctr. for Am. Progress, America’s Broken Criminal Legal System Contributes to Wealth Inequality (2022), https://www.americanprogress.org/article/americas-broken-criminal-legal-system-contributes-to-wealth-inequality [perma.cc/Q2NE-TB59].
Consequently, people in these communities tend to have higher debt incurred from monetary sanctions, burdening and exacerbating disadvantages for those communities as a whole.²⁴⁵O’Neill et al., supra note 39 at 44, 48 (“As with police contact, arrest, incarceration, and supervision, communities with higher rates of poverty and BIPOC [(Black, Indigenous, and people of color)] residents are disproportionately affected by LFOs [(legal financial obligations)].” (citation omitted)).
Restitution and other monetary sanctions “extract[] resources from neighborhoods, straining social network ties, weakening institutional bonds, and, ultimately, preventing neighborhoods from building structural resources to support upward mobility,” with those consequences falling more harshly on communities with larger populations of BIPOC (Black, Indigenous, and People of Color) residents.²⁴⁶Id. at 55.

Recent studies reveal a direct correlation between criminal debt and future poverty for neighborhoods. One empirical study, for example, analyzes the spatial distribution and impact of monetary sanctions in Washington State. There researchers determine that monetary sanctions, including restitution, and the many resulting burdens²⁴⁷Id. at 45 (discussing how debt from monetary sanctions exacerbates economic problems for individuals who cannot pay them immediately, including difficulty paying for childcare, housing, and food, and can result in driver’s license suspension, extended supervision, increased court reporting requirements, and incarceration).
are closely tied to neighborhood poverty and perpetuate racial and economic inequalities at both an individual and community level. The authors of the study examine average cash obligations for monetary sanctions per neighborhood and their structural impacts, concluding that neighborhoods with a higher concentration of these obligations in a given year “tend to have higher poverty over time, and this association is stronger in less-White neighborhoods.”²⁴⁸Id. at 54–55. In particular, the study found that there are four distinct mechanisms that link monetary sanctions to neighborhood poverty and reproduce inequality at the community level: (1) “a direct extraction of economic resources from neighborhoods, which weakens or subverts institutional bonds among neighborhood residents”; (2) “continued and increased surveillance and social control of LFO-burdened neighborhoods”; (3) “courtesy stigma,” which refers to the shame, exclusion, and social isolation within neighborhoods, not just within individuals; and (4) the strain criminal debt places on neighborhood residents’ civic engagement. Id.
The authors conclude that restitution and other monetary sanctions “effectively lock people and their communities in a cycle of prolonged legal entanglement, poverty, and disadvantage, aiding in the development of race-class subjugated communities.”²⁴⁹Id. at 47.
The study underscores how restitution entrenches and legitimizes economic and racial inequalities not just for individual defendants of color but for entire communities.

Criminal restitution’s footprint continues to expand and thrive in part because it rests on the fundamental misconception that it benefits defendants. Yet, the punitive and wealth-extracting impacts on defendants and their communities are unmistakable, directly impeding its intended goals.

Myth #2: Victims Are Fulfilled

The second major justification for criminal restitution is the naïve assumption that its policies and practices serve victims. A primary impetus behind the expansion of restitution laws was the motivation to improve the experiences of victims in the criminal legal system by providing monetary compensation.²⁵⁰Manaugh, supra note 42, at 369.
Despite its victim-centered goals, however, criminal restitution, as it exists today, is not working as intended on behalf of victims.

A central critique of criminal restitution among victims’ advocates is that victims do not receive the compensation they expect. Ironically, restitution collection rates have fallen considerably since restitution became mandatory.²⁵¹See Dickman, supra note 9, at 1694.
One would assume that mandatory statutes like MVRA, requiring compensation for the “full amount” of victims’ losses, would lead to more money for victims. In practice, the outcome is quite the opposite. In the years since MVRA was enacted, “the amount of outstanding federal criminal debt has grown more than eightfold, from approximately $6 billion in 1996 to over $50 billion in 2007.”²⁵²Id. at 1691 (footnote omitted).
Today, federal restitution debt has ballooned to $110 billion, with less than 10 percent of restitution collected. ²⁵³See U.S. Gov’t Accountability Off., supra note 43, at 25.
Victims expecting financial reparation are consistently let down. Over a two-year period, federal courts ordered approximately $33.9 billion in restitution, yet only $2.95 billion was collected.²⁵⁴Id. at 16, 22.
States similarly struggle to collect restitution debt.²⁵⁵ Rachel L. McLean & Michael D. Thompson, Council of State Gov’ts Just. Ctr., Repaying Debts 7 (2007), https://www.ojp.gov/ncjrs/virtual-library/abstracts/repaying-debts-report-summary [perma.cc/7KDD-8N68].
Many states have millions of dollars in outstanding restitution orders. For example, in the most recent survey of state restitution debt, eleven states had “an average of $178 million per state in uncollected court costs, fines, fees, and restitution.”²⁵⁶Id.
Many states do not even track whether restitution is collected or the amounts distributed to victims.²⁵⁷Waterman, supra note 160, at 470.

These staggering numbers demonstrate that the enormous resources and efforts employed to enforce restitution orders are largely fruitless. Enforcing a restitution judgment is costly. As discussed in Section II.B, at the federal level, the power of the federal government to enforce restitution orders has substantially expanded, particularly since passage of MVRA. The DOJ itself acknowledges that, even with the creation of FLU units, “the Mandatory Victims Restitution Act (MVRA) has resulted in a large surge in criminal debt, but it has not resulted in any appreciable increase in compensation to the victims of crime, in most cases, because of the defendants’ inability to pay.”²⁵⁸Dickman, supra note 9, at 1694.
As the DOJ warns victims on its website, “[r]ealistically . . . the chance of full recovery is very low. . . . If and when the defendant pays, you most likely will receive a number of small payments over a long period of time.”²⁵⁹Restitution Process, DOJ (Sept. 18, 2020), https://www.justice.gov/criminal-vns/restitution-process [perma.cc/KV8E-ZCZ3].

The costs associated with enforcing restitution orders typically far exceed the amount of the restitution order, further undermining their validity. According to a 2009 empirical study on restitution collection rates, when factoring in “litigation and enforcement costs of the United States Attorneys” at the federal level, the government spends “approximately $2,000” to impose a restitution order in each case.²⁶⁰Dickman, supra note 9, at 1708.
Significantly more money, ultimately paid by taxpayers, is spent to enforce restitution when defendants do not satisfy the restitution order.²⁶¹See id.
By contrast, “the average expected offender payment on a $5,000 restitution order is approximately $175.”²⁶²Id.
At the state level, many states employ private collection agencies to improve the chance of collection, but that process also carries significant costs.²⁶³See, e.g., Fla. Stat. § 28.246(6) (allowing up to a 40 percent additional fee for a collection agent).
Considerable time is also spent by probation officers, who are typically tasked with monitoring compliance with restitution orders. The purview of probation officers includes constantly assessing defendants’ financial circumstances and their bona fide efforts to pay restitution (i.e. finding employment).²⁶⁴18 U.S.C. § 3563(b)(22); 18 U.S.C. § 3603(7) (requiring probation officers to “keep informed” about compliance with probation conditions, “including the payment of a fine or restitution”).
If a probation officer believes reasonable efforts are not being made, further time and resources are then expended in taking a defendant to court to face a revocation hearing.²⁶⁵See Linda F. Frank, The Collection of Restitution: An Often Overlooked Service to Crime Victims, 8 J.C.R. & Econ. Dev. 107, 128–30 (1992) (estimating that it costs “[a]pproximately fifty-five hours of the public’s time, paid for by the state’s taxpayers” to resolve whether the offenders’ probation should be revoked for failure to pay restitution in court).
Therefore, not only are victims uncompensated but significant resources are also wasted in an attempt to obtain compliance from defendants, resources that might be applied in other ways to help assist victims.

Although victims are permitted to bring civil claims against a defendant when restitution debt is unsatisfied, those options also offer little satisfaction. Any legal or other expenses incurred pursuing civil recovery of financial losses are typically uncompensated, often leaving victims in a worse financial position.²⁶⁶See United States v. Abdelbary, 746 F.3d 570, 577 (4th Cir. 2014) (“[A]ttorney fees incurred in civil litigation against the defendant for the same acts at issue in the criminal proceedings are consequential damages that are not recoverable.” (quoting United States v. Elson, 577 F.3d 713, 728 (6th Cir. 2009))).
Defendants who fail to meet criminal restitution payment requirements similarly fail to make civil payments, including compensation awarded for attorney’s costs and fees.²⁶⁷See generally Maria Rafael & Stephen Lurie, Vera Inst. of Just., A Matter of Time: The Case for Shortening Criminal Debt Collection Statutes of Limitations, A 50 State Survey (2024).
As one scholar points out, forcing victims to obtain financial compensation through other legal processes “seems to defeat the central purpose of restitution—making the victim whole.”²⁶⁸Waterman, supra note 160, at 471.

Another factor contributing to victims not feeling adequately compensated is how the restitution they receive compares to the amount they are owed. When Congress passed the federal restitution statute, legislators assumed that “victims of crime would be happier if full restitution of the victim’s loss were ordered, even if there were no realistic possibility of the judgment being fulfilled” and that “even nominal restitution” would be beneficial to victims.²⁶⁹Dickman, supra note 9, at 1697–98 n.77 (noting that, in response to concerns that defendant indigency will prevent collection, Senate Judiciary Committee noted, “the benefits that even nominal restitution payments have for the victim of crime”).
In a survey of 198 victims of crime, victim satisfaction correlated most significantly with “the percentage of the restitution award paid by the offender, regardless of the size of the award.”²⁷⁰Dickman, supra note 9, at 1698.
In other words, the fact that a court orders “full restitution” bears little on victim satisfaction unless that amount comports with a defendant’s realistic ability to pay. Restitution orders that can never be satisfied give victims a sense of “false hope” that they will be compensated ²⁷¹Id.
when, in fact, available statistics show that this is rarely the case.²⁷² U.S. Gov’t Accountability Off., supra note 43, at 25.

Finally, unrealistic restitution orders have the great potential for compounding emotional and psychological harm for crime victims. When expectations of compensation are not met and prolonged over a period of time, the process itself could increase victimization and place a substantial emotional burden on victims.²⁷³Dickman, supra note 9, at 1698.
This point was, notably, emphasized in the child pornography context: “Rather than encouraging victims to move forward with their lives, restitution roots them in their abuse experience, potentially causing additional psychological harm.”²⁷⁴Lollar, supra note 25, at 344.

Restitution legislation and practices thrive on the false assumption that restitution helps restore victims. Yet, for many, restitution is a hollow promise, leaving victims disappointed, powerless, and emotionally burdened. The failures of modern restitution call for a necessary reevaluation of the regime, one that better supports victims and promotes defendants’ successful rehabilitation and reintegration in society.

IV. Reimagining Criminal Restitution

Criminal restitution has significantly departed from its stated policy goals of promoting the interests of victims and rehabilitation and accountability for defendants. This Part considers various approaches for minimizing the wealth-extracting harms to the indigent and their communities while also bringing about increased satisfaction to victims. Sections IV.A and IV.B focus on immediate legislative and judicial reforms that can fundamentally restructure the current restitution scheme and substantially reduce the economic and racial inequities it has perpetuated over the years. Relying on restorative justice principles, Section IV.C examines a long-term approach for reconceptualizing criminal restitution as a noncompensatory, community-driven remedy.

Shrinking Restitution’s Footprint

Although it may be appealing to dismantle the restitution regime in criminal courts entirely, wholesale abolition is impractical at this point due to the breadth of the harm and dysfunction of the restitution system. Criminal restitution took nearly four decades to evolve into its current form. Incremental solutions, however, offer an effective way forward because they can immediately reduce the various harms attributed to restitution and better align it with its intended goals.

First, legislatures must shrink restitution’s massive footprint. One critical step is to return to restitution’s traditional approach rooted in the disgorgement of ill-gotten gains.²⁷⁵See, e.g., Sanford H. Kadish, Stephen J. Schulhofer, Carol S. Steiker & Rachel E Barkow, Criminal Law and Its Processes: Cases and Materials 93, 100 (9th ed. 2012) (describing traditional retributive justifications for criminal punishment).
Restitution as a financial remedy may remain legitimate in cases where the goals are purely aimed at returning victims to their economic status quo, as criminal restitution was traditionally conceived. Such an approach would eliminate the various challenges arising from compensation for unquantifiable and speculative losses (i.e. future emotional injuries), which are at the center of restitution’s amorphous character today. Limiting restitution to tangible financial losses also avoids guesswork and ambiguity in determining the appropriate amount of compensation owed to a victim, promoting a more uniform and reliable system for valuing loss in criminal courts.

In addition, criminal restitution should also be reduced in scope by limiting the definition of who is considered a “victim” entitled to compensation. As laid out in Section II.B, restitution is routinely awarded in cases where there is no tangible loss or to parties that are not directly harmed by the criminal conduct. Insurance companies, for example, receive “double compensation” under the current scheme as they receive a payment from defendants and premiums from their customers.²⁷⁶Reimagining Restitution: New Approaches to Supporting Youth and Communities, Juv. L. Ctr. 10 (2022); see, e.g., United States v. Cliatt, 338 F.3d 1089 (9th Cir. 2003) (ordering defendant to pay restitution to a hospital even though the victim’s medical costs were paid for by insurance); United States v. Hackett, 311 F.3d 989 (9th Cir. 2002) (requiring defendant to pay an insurance company restitution after the insurance company paid for fire damages to a house that defendant damaged, yet the insurance company received premiums from the owner prior to the incident).
Considering third parties who are not directly harmed to be a “victim” for purposes of criminal restitution statutes does not fit any of the rationales justifying the remedy.²⁷⁷See Lollar, supra note 11, at 141.
No justification exists under a theory of compensating a victim’s losses, as in these cases there is either no tangible victim (for example, in drug cases) or the third party suffered no injuries directly resulting from the crime. Similarly, requiring defendants to be accountable to entities that suffered no direct loss or those who have otherwise already been reimbursed for that loss becomes too attenuated to legitimately achieve any goals of sentencing. As legislators search for practical bright lines to limit criminal restitution and increase the likelihood that it serves its intended purposes, they should permit compensation for only individual victims who suffer tangible, economic loss, as restitution was originally conceived.²⁷⁸See id. at 97; Lollar, supra note 87, at 103–04.

Ability to Pay

In cases where it is appropriate to compensate for unlawful gains, the current restitution framework must embrace a discretionary model where judges are required to consider a defendant’s ability to pay at the outset—not simply when addressing default but in deciding whether and how to impose criminal restitution.²⁷⁹States vary substantially in whether ability to pay is a factor of consideration. Twenty-three states give courts discretion to consider a defendant’s financial circumstances in ordering restitution, six states have prohibited this consideration, and twenty-one states do not provide any guidelines on how to impose restitution. Waterman, supra note 160, at 469 (citing R. Barry Ruback, The Benefits and Costs of Economic Sanctions: Considering the Victim, the Offender, and Society, 99 Minn. L. Rev. 1779, 1793 (2015)).
Mandatory restitution schemes are ineffective for victims and detrimental to defendants. Despite the seemingly noble intentions behind these statutes, the costs of this legislation have greatly outweighed the benefits on the ground. The 2017 Model Penal Code provision on restitution embraces an entirely discretionary model, pointing to “[p]olicies of public safety, the avoidance of criminogenic applications of criminal penalties, and offender reintegration” as primary reasons to change the current restitution landscape.²⁸⁰ Model Penal Code § 6.04A cmt. C (Am. L. Inst., Proposed Final Draft 2017); cf. Waterman, supra note 160, at 469.
The model provision also requires that courts weigh “the financial circumstances of the defendant” in deciding how much restitution to impose and empowers courts to decline to order restitution altogether.²⁸¹Model Penal Code § 6.04A(6).

Ability to pay is a major factor impacting collection rates.²⁸²Waterman, supra note 160, at 467–78 (describing reform efforts in states such as Michigan, Arizona, and Vermont that demonstrated that, when courts were allowed to consider a defendant’s current ability to pay restitution, there was a substantial increase in the amount of restitution the state collected).
Despite a clear connection between defendants’ lack of ability to pay and low collection rates for restitution, there is resistance among legislatures, judges, and victim advocates to require judges to consider ability to pay as a factor in the first instance.²⁸³See id. at 469.
If courts were to consider this relevant information from the beginning, it would save enormous amounts of time, money, and resources for all involved. In addition, given the findings about the nexus between victim satisfaction and ability to pay, a discretionary model for restitution also serves victims. In many cases, assessing a defendant’s ability to pay during sentencing would use judicial resources that are already being spent. Courts constantly evaluate the financial circumstances of those who enter the criminal system. For example, federal probation officers already conduct ability-to-pay investigations to assist courts in deciding whether to impose punitive fines at sentencing;²⁸⁴ Fed. R. Crim. P. 32(c)–32(d).
the same information could easily be applied when considering restitution. At an even earlier stage, courts evaluate a defendant’s financial means to determine if a defendant qualifies for a public defender.²⁸⁵Sobol, supra note 5, at 536 (“Although this may seem like a heavy burden, courts routinely make assessments about an individual’s need for a public defender. A similar process should be developed for determining ability to pay.” (footnote omitted)).
Therefore, resources that can assist courts in making ability-to-pay determinations at the restitution stage are already being spent. Mandating ability-to-pay determinations prior to the imposition of criminal restitution is unlikely to impose significant administrative burdens on trial courts that already make such determinations.

The practice of ability-to-pay determinations is controversial, however. Some critics have focused on the practicality of these assessments, arguing that they are too speculative and static to truly reflect a person’s ability to pay.²⁸⁶See Waterman, supra note 160, at 480; see also Zhen, supra note 8, at 201 (“[N]o finite set of questions can accurately determine a person’s past, present, and future circumstances.”).
States also vary widely in the criteria that are considered for making these determinations. Many state procedures inquire not only about one’s income but also their expenses, assets, imputed earnings from family members, “credit standing,” and future earning potential, among other categories.²⁸⁷Zhen, supra note 8, at 202 (quoting Me. R. Unif. Crim. P. 44(b)).
Furthermore, these assessments can require extensive verification of a person’s financial circumstances, which can be very challenging and burdensome for those with limited means, particularly those who do not perform traditional or steady work.²⁸⁸Id. at 203.

One model that may respond to these concerns is the “day-fine model,” first developed in Europe,²⁸⁹Beth A. Colgan, Graduating Economic Sanctions According to Ability to Pay, 103 Iowa L. Rev. 53, 56–57 (2017); see also Elena Kantorowicz-Reznichenko, Day Fines: Reviving the Idea and Reversing the (Costly) Punitive Trend, 55 Am. Crim. L. Rev. 333 (2018) (providing an historical overview of the development of day fines in Europe and its brief experimentation in the United States).
which intends to adjust any monetary sanction to fit the person’s financial means and reflect a person’s true ability to pay.²⁹⁰See Colgan, supra note 289, at 56–57.
The practice involves a two-step process. First, the criminal offense is assigned a specific penalty unit that can be adjusted based on the severity of the offense. Second, the court determines the person’s adjusted daily income based on their self-report, which can be adjusted downward based on their reported expenses.²⁹¹Id.
The day-fine amount is then calculated by multiplying the penalty units by adjusted daily income.²⁹²Id.
Professor Beth Colgan asserts that, by considering the severity of the offense and accounting for a person’s financial circumstances, a day-fine model would better achieve accountability and deterrence and avoid inflated assessments of a person’s ability to pay.²⁹³Id. at 57.
Although policymakers have experimented with implementing the day-fines practice in the United States, it has gained little traction.²⁹⁴Kantorowicz-Reznichenko, supra note 289, at 335 (arguing that the United States should revive the discussion about day fines to reduce mass incarceration).

Another notable critique scrutinizes the ability-to-pay framework through a critical race theory lens, arguing that the practice may have the unintended consequence of perpetuating racial and economic disparities in the criminal legal system. Theresa Zhen asserts that, although the goals of this reform are noble, these determinations, in practice, legitimize the existing racialized system of monetary sanctions and fail to consider how systemic racism has played a role in these assessments in the first instance. She notes that these determinations, which are implemented by institutional players who “have a vested interest in collection” and operate in “racialized structures that both reflect and help to create and maintain race-based outcomes in society,” do not account for nor correct racialized policing patterns, a deepening racial wealth gap, or the compounding effects from one’s inability to pay prior debt from monetary sanctions.²⁹⁵Zhen, supra note 8, at 209.
The object of Zhen’s criticism is primarily the fines and fees that serve as a source of revenue for courts and local governments and the racialized ways the fines and fees are generated, not restitution. Zhen’s critiques are valid, and implementing an ability-to-pay framework is certainly not a panacea for the deep-rooted issues surrounding race in the criminal legal system. Those critiques, however, are less applicable to an ability-to-pay model in the restitution context. A framework that seriously weighs one’s economic circumstances still offers an immediate path for reducing harm criminal restitution causes, for both defendants and victims alike.

In addition to proactively weighing an individual’s ability to pay on the front end of imposing restitution, legislatures and courts should also seek to limit the harsh collateral consequences attributed to nonpayment of restitution. Containing collateral consequences would significantly minimize the wealth-extracting impacts of restitution on the most vulnerable. As a preliminary matter, particularly absent clear and specific guidance from the Supreme Court on interpreting “willful” nonpayment of court debt, incarceration should be eliminated as an option for resolving the failure to pay.²⁹⁶Lollar, supra note 174, at 428.
The overwhelming majority do not satisfy their restitution obligations because they do not have money, and may never have a reasonable ability, to pay given their economic prospects, not because they are intentionally trying to avoid their obligations. In fact, research shows that many who owe restitution hold intentions of paying it and even view it as a legitimate sanction, but their financial circumstances pose the greatest obstacle to meeting this obligation.²⁹⁷Pattillo & Kirk, supra note 69, at 61–62.
Other penalties for nonpayment, such as seizing assets or garnishing wages, should be considered only following specific guidance for determining whether nonpayment is “willful.” The guidance on “willful” nonpayment should include full consideration of a person’s financial circumstances. Furthermore, statutory reforms should be enacted at the state and federal levels, permitting courts to waive or modify restitution orders in the event of default and eliminate the host of pervasive financial sanctions and collections that accrue for missed payments.

In the same vein, considering ability to pay at the outset should also mean wealthier defendants pay a larger share of restitution orders. Under the current scheme, defendants with financial means receive less relative punishment when restitution is imposed because a lesser burden is placed on them to meet their obligations, and they do not face any of the collateral consequences that flow from nonpayment. Further, any efforts by the FLU should be first directed toward those who have the financial means to pay restitution. Such a directional shift would protect executive and judicial resources and likely improve collection rates.²⁹⁸Professor Elena Kantorowicz-Reznichenko examines this practice of imposing fines relative to one’s wealth through a comparative lens, pointing to several examples in Europe where day-fines systems have been implemented successfully. In Germany, for example, studies reveal that the practice results in increased rates of payment among defendants in traffic cases, with only 4 percent of defendants defaulting on their payment. Kantorowicz-Reznichenko, supra note 289, at 342.
Finally, to ensure a more equitable distribution, individuals with greater resources could also contribute to restitution through a crime victim compensation fund, a pot of money from which any victim can seek reimbursement if deemed eligible.²⁹⁹In recent years, there has been growing attention from advocates in expanding victim compensation funds for restitution payments. Supported by the federal Victims of Crime Act of 1984 (VOCA) and various state funding sources, victim compensation funds operate in every state, yet there are substantial differences among states in how they implement their programs and the requirements they impose. Because the rules for these programs are often restrictive, there have been recent calls to eliminate the barriers that exist for victims and expand access to programs in a way that better addresses trauma and fosters trust among those affected. See generally John Maki & Heather Warnken, N.Y.U. Marron Inst. of Urb. Mgmt., Realizing the Promise of Crime Victim Compensation (2023); see also Lindsey E. Smith et al., Juv. L. Ctr., Reimagining Restitution: New Approaches to Support Youth and Communities 22 (2022), https://jlc.org/sites/default/files/attachments/2022-07/JLC-Reimagining-Restitution.pdf [perma.cc/2VUL-QSLG].
Not only would this lessen the individual burden of restitution debt on those unable to pay but it has also shown to be a more effective model for increasing victim compensation.³⁰⁰E.g., Nat’l Ctr. for Victims of Crime, Making Restitution Real 41 (2011), https://web.archive.org/web/20121018052118/http:/www.victimsofcrime.org/docs/Reports%20and%20Studies/2011_restitutionreport_web.pdf?sfvrsn=2 [perma.cc/69L8-ZQGY] (discussing examples of improved compensation for victims in states such as Vermont, which implemented various reforms to its restitution system, including creating a fund specifically for victims to receive restitution).

Restorative Justice

Although these proposed legislative and judicial reforms would greatly minimize the harms restitution causes, limitations on criminal restitution as a financial remedy remain. Drawing from restitution’s restorative justice roots,³⁰¹See Karin D. Martin & Matthew Z. Fowle, Restitution Without Restoration? Exploring the Gap Between the Perception and Implementation of Restitution, 63 Socio. Persps., 1015, 1017 (2020).
courts should have at their disposal community-driven alternatives to financial compensation altogether, such as mediation.³⁰²Restorative justice can encompass a range of different processes and models, including victim-offender mediation and family group conferencing. Although the structures for each can vary, there is emphasis on tailoring a program to fit the particular needs of the individual and communities involved. See Susan Hanley Duncan, Restorative Justice and Bullying: A Missing Solution in the Anti-Bullying Laws, 37 New Eng. J. on Crim. & Civ. Confinement 267, 274–75 (2011).
Making restorative justice available could provide victims with more agency to meaningfully address harm,³⁰³See id. at 267–77 (“The victim never obtains closure when the primary focus is to mete out punishment to the offender. In this system, the needs of the victim remain largely unknown and as a result unaddressed.” (footnote omitted)).
lessen the burdens on defendants financial restitution causes, and allow defendants to directly make amends for their actions, perhaps more effectively than traditional forms of restitution. Our failed reliance on financial compensation as the only form of restitution suggests the need for a radical change in how we approach this system in criminal cases. With stakeholder involvement and empowerment at the center of restorative justice theory, it has the great potential to better achieve the goals of criminal restitution and reduce its harmful footprint in criminal courts.

The defining tenets of restorative justice are healing and accountability through the reconciliation of all involved parties.³⁰⁴See Danielle Sered, Vera Inst. of Just., Accounting for Violence: How to Increase Safety and Break Our Failed Reliance on Mass Incarceration (2017), https://www.vera.org/downloads/publications/accounting-for-violence.pdf [perma.cc/8AHC-VQ7M].
A major criticism from victims’ advocates, one that spurred the victim-centered legislation of the 1990s, is that victims lack the opportunity to meaningfully participate in the restitution process. Although restitution legislation such as VAWA and MVRA purported to validate those concerns, little has been done to actually incorporate victims in practice, and “victims are rarely consulted about their needs or how they believe the case should be resolved.”³⁰⁵ Ruth Ann Strickland, Restorative Justice 37–38 (David A. Schulz & Christina DeJong eds., 2004).
Such concerns can lead victims to feel “essentially invisible and impotent in the [restitution] process” and perpetuate their victimization in the criminal legal system under the current retributive model.³⁰⁶See Manaugh, supra note 42, at 365; see also Peters, supra note 33, at 1300.

By contrast, restorative justice alternatives are specifically intended to center the experiences of victims and provide victims with the agency to shape their reparations, while offering opportunities for defendant accountability that is rooted in dignity. With the help of a trained mediator, all parties involved—victims, defendants, their representatives, and community members—come together on a voluntary basis to describe how the experience has impacted them and to reach an agreement on how to make amends.³⁰⁷Michelle Alexander, Reckoning with Violence, N.Y. Times (Mar. 3, 2019), https://www.nytimes.com/2019/03/03/opinion/violence-criminal-justice.html [perma.cc/KN3K-Y5N6].
Over the years, these models have garnered considerable support and enhanced satisfaction from victims.³⁰⁸Dickman, supra note 9, at 1715.
Despite the long-held belief that victims would prefer to seek retribution in criminal cases, research shows, “80 to 90 percent rates of satisfaction with restorative processes, as compared to 30 percent for traditional court systems.”³⁰⁹Alexander, supra note 307.
Similarly, a 2016 survey conducted by the Alliance for Safety and Justice, the first national poll of crime survivors, found that nearly 70 percent of victims would prefer alternatives to prison, including mental health and substance abuse treatment, community supervision, and public service, when given the choice.³¹⁰Id.; In New York City, 90 percent of more than one hundred victims of violent crime indicated they preferred that the person who caused them harm participate in a restorative process rather than be incarcerated. See Sered, supra note 304, at 16.
Further, research shows that restorative justice programming has not only improved victim satisfaction but has also proven to reduce recidivism,³¹¹Dickman, supra note 9, at 1715.
“with some large-scale studies finding reoffense rates as much as one-third lower for cases resolved through VOM [(victim-offender mediation)] than for those adjudicated in court.”³¹²Id.
“Ultimately, the goal of such practices ‘is the restoration into safe communities of victims and offenders who have resolved their conflicts.’ ”³¹³Id. at 1714 (quoting Antony Duff, Restoration and Retribution, in Restorative Justice and Criminal Justice 43, 44 (Andrew Von Hirsch et al. eds., 2003)).

Although restorative justice in the criminal legal system is often employed as a form of diversion—as an alternative to a criminal conviction or a sentence of incarceration—it can be similarly effective in a postconviction setting as an alternative to financial restitution. Instead of ordering that a defendant pay money to a victim, which may never be collected and lead to harsh consequences for a defendant along the way, courts should have various alternatives to restitution at their disposal, such as mediation, reconciliation programs, and community service. In Maine, for example, after legislation was enacted in 2019 that allowed young offenders to perform community service and other restorative justice activities in lieu of a financial payment, cases resolved more quickly.³¹⁴Erica L. Green, For Young Offenders, Restitution Debts Can Present Crippling Obstacles, N.Y. Times (July 14, 2022), https://www.nytimes.com/2022/07/14/us/politics/juvenile-restitution-debts.html [perma.cc/YN3Q-A6CQ].
Even when victims are adequately compensated, existing research on restorative justice suggests that victims may be looking for more beyond financial compensation.³¹⁵Stacy Hoskins Haynes, Alison C. Cares & R. Barry Ruback, Reducing the Harm of Criminal Victimization: The Role of Restitution, 30 Violence and Victims 450, 460 (2015) (describing one study, which finds that only 37 percent of victims were satisfied with the timeliness of restitution payments and only 33 percent were satisfied with the amount paid to date).
Restorative justice offers a meaningful alternative to criminal restitution that addresses the harm to victims and the community without perpetuating the inequities caused and perpetuated by financial restitution.

Of course, restorative justice models may not be appropriate in all cases. There is also a need for additional research and exploration on the long-term impacts of restorative justice to truly measure its effectiveness.³¹⁶See Dickman, supra note 9, at 1717.
The successes of the restorative justice movement, however, should compel us to reconceptualize restitution in ways beyond financial compensation.

Conclusion

Despite its explosive and increasingly punitive nature, restitution is often overlooked in the growing discussions of financial punishment in criminal courts. Having significantly veered from its purported goals, criminal restitution, in its current form, has proven to be an ineffective and harmful financial sanction. A spotlight is long overdue on the underappreciated realities that have left victims of crime unfulfilled and reinforced a system of racialized punishment and social control entrapping the vulnerable in criminal debt. Courts and legislatures must consider a fundamental restructuring of the modern restitution regime, one that promotes equity and fairness for all involved.

* Associate Professor of Clinical Law and Director, Criminal Defense and Justice Clinic, George Washington University Law School. I am incredibly grateful to those who provided helpful support, encouragement, and feedback on this Article, including Deborah Epstein, Kristin Henning, Vida Johnson, Katie Kronick, Laurie Kohn, Kathryn Miller, Wallace Mlyniec, Maneka Sinha, Vincent Southerland, Jessica Stein-berg, Kimberly Thomas, and Kate Weisburd. I also wish to thank participants at the 2022 Clinical Law Review Writers’ Workshop and Mid-Atlantic Clinicians Writing Workshop for their insightful comments on earlier drafts of this Article. Special grati-tude to George Washington University Law School students Abbi Burgess, Kaitlin Fontana, Kelly Hennessy, Angela Seagraves, Chelsea Sullivan and Jasmine Virenque for their invaluable research support. Finally, I am very grateful to the editors of Michigan Law Review for their outstanding editorial assistance.