Restitution Order Improper If Calling for Immediate Payment
The Mandatory Victims Restitution Act of 1996 directs that a sentencing court must specify in the restitution order the manner in which, and the schedule according to which, restitution is to be paid. This is a non-delegable order.The Point of This Article: Under the Mandatory Victims Restitution Act, a federal law, a judge may not order immediate payment of restitution by defendant to any victim(s), but the judge may specify that the Bureau of Prisons (BOP) or probation establish a repayment schedule to victim(s).
The Court of Appeals characterized the trial court’s order of “immediate” payment as having the practical effect of improperly delegating the trial court’s obligation to set a payment schedule under the Mandatory Victims Restitution Act to the Bureau of Prisons (BOP). In other words, the trial court shifted its duty to the BOP to work out a restitution payment schedule, based on Ward’s voluntary employment in prison by Unicor.
The Court of Appeals then looked to other Ninth Circuit cases wherein an order of “immediate” payment was challenged. In both cases (United States v. Gunning (Gunning II) (9th Cir. 2005) 401 F.3d 1145 and United States v. Lemoine (9th Cir. 2008) 546 F.3d 1042), such an order was held to violate the Mandatory Victims Restitution Act by leaving a schedule of payments to the BOP to decide. In passing, the Court of Appeals acknowledged that it is common practice for Ninth Circuit courts to impose restitution “due immediately” as part of sentences where defendant is committed to a term of imprisonment, with an expectation that the BOP and/or probation will work out the details of payment. This usual practice of implicit delegation, however, is improper.
Therefore, the Court of Appeals vacated the restitution order and remanded the case to the trial court to comply with the Mandatory Victims Restitution Act.
For more information about restitution issues, click on the following articles:
Contact Greg Hill & Associates
- Restitution Award in DUI Case Reversed and Vacated Because Trial Court’s Calculation Not Rational
- Defendant Does Not Have to Pay Restitution When Probation Terminated and Case Is Dismissed
- Restitution to Victim Cannot Be Increased After Probation Ends, Even If Victim Sues Defendant in Civil Lawsuit and Wins Millions