The Antiterrorism and Effective Death Penalty Act of 1996, specifically Title II, Subtitle A, the Mandatory Victims Restitution Act ("the Act"), amended restitution laws and, by altering 18 U.S.C. § 3663 et seq., strengthened enforcement. On July 24, 1996, in response to a Congressional directive in the Act, the Attorney General issued a memorandum to all Department of Justice Attorneys and Victim-Witness Coordinators that addressed, among other things, plea agreements and restitution. The following language was taken from that memorandum and Article V of the Attorney General Guidelines for Victim and Witness Assistance:

Section 209 of the Act mandates that when negotiating plea agreements, prosecutors must give consideration to "requesting that the defendant provide full restitution to all victims of all charges contained in the indictment or information, without regard to the count to which the defendant actually plead[s]." In addition to this mandate, the following general guidelines summarize the responsibilities of prosecutors with regard to plea agreements that include provisions regarding restitution:

First, 18 U.S.C. § 3663A mandates that restitution be ordered for crimes of violence, for offenses against property under the criminal code (unless the court makes a special finding described in subsection (c)(3) of that section), and for offenses described in 18 U.S.C. § 1365, if an identifiable victim or victims suffered a physical injury or pecuniary loss. There are also several other previously enacted statutes that mandate restitution: 18 U.S.C. § 2248; 18 U.S.C. § 2259; 18 U.S.C. § 2264; and 18 U.S.C. § 2327. In cases that fall under these statutes, the court is obligated to impose a restitution order.

Second, even when restitution is not mandatory, federal prosecutors should give careful consideration to seeking full restitution to all victims of all charges contained in the indictment or information as part of any plea agreement.

Third, when an indictment contains both charges for which restitution is mandatory, and charges for which restitution is not mandatory, prosecutors should give careful consideration to requiring either a plea to a mandatory restitution charge, or an acknowledgement by the defendant in the plea agreement that a mandatory restitution charge gave rise to the plea agreement, which acknowledgement will trigger the mandatory restitution provisions of 18 U.S.C. § 3663A. 18 U.S.C. § 3663A(c)(2).

Fourth, prosecutors should also be mindful that the United States Sentencing Guidelines (USSG) generally require the imposition of restitution when it is authorized by the law, and should not enter into agreements regarding restitution that would violate the Sentencing Guidelines. See USSG § 5E1.1; JM 9-27.400.

Fifth, supervisory attorneys who approve plea agreements, as is required by the Principles of Federal Prosecution (JM 9-27.450), should ensure that plea agreements comply with the law and these guidelines. The Principles of Federal Prosecution list the factors that should be considered when determining whether to enter into a plea agreement. These factors include, among other factors, the effect the plea agreement will have upon a victim's right to restitution. JM 9-27.420- 430.

[updated November 2022]