Federal criminal restitution has been criticized for failing both victims and defendants, according to a report by the National Association of Criminal Defense Lawyers. The report highlights systemic issues within the restitution framework, revealing that approximately $100 billion in restitution remains uncollectable, leaving victims without compensation and defendants trapped in debt.
This report emerges as the U.S. Supreme Court examines a critical question: whether restitution should be classified as criminal punishment or civil compensation. The defense lawyers’ group, alongside Families Against Mandatory Minimums, contends that restitution functions more like a punishment, as argued in their amicus brief filed earlier this year.
For many defendants, outstanding restitution leads to significant hurdles in their reintegration into society. Restrictions such as driver’s license suspensions, barriers to professional licensing, and wage garnishments are common, creating a cycle of economic instability that can lead to re-incarceration for failure to pay. Those subjected to restitution orders often face a relentless struggle to meet these financial obligations while managing basic living expenses.
Cortney Lollar, faculty director at Georgia State University College of Law’s Center for Access to Justice, emphasized the plight of defendants unable to pay their restitution, noting that these individuals remain entangled in the criminal justice system. As they age, the challenge to balance debts and essential needs becomes increasingly burdensome, with many finding themselves unable to escape the cycle of debt.
The Supreme Court’s current case, Ellingburg v. U.S., showcases the complications within the restitution system. Holsey Ellingburg Jr., convicted in 1996, faced a restitution order with compounding interest that drastically increased his debt over time. Released from prison in 2022 after serving a 26-year sentence, Ellingburg still owes over $13,000 due to the compounded interest—a significant increase from the original $7,567.
The report brought attention to another defendant’s struggle, where even a minor shortfall of 60 cents in a restitution payment led to punitive reductions in prison wages. Despite the request to delay payments until after release, the courts denied the appeal, reinforcing the rigidity of the current system.
A call for reform includes separate restitution hearings, consideration of a defendant’s financial situation, and limiting restitution to actual losses without accrued interest. Such changes aim to alleviate the financial burden while ensuring victims receive rightful compensation. The report advocates for better data tracking to understand the demographics of those who pay restitution and the victims who receive it.