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 Should You Pay Restitution Before Sentencing? 

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Michael Santos

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Introduction

There are many views regarding whether federal white-collar defendants should pay full or partial restitution before sentencing. 

One school of thought is that doing so helps show remorse and acceptance of responsibility to the sentencing judge. To others, doing so does not move the needle. 

In the end, the only view that matters is the view of the defendant’s sentencing judge on sentencing day. However, the views of other sentencing judges around the country can help inform the debate and provide insights to help people make the decision they are most comfortable with for their own case.

Discussion

At a sentencing hearing, the defendant’s character is on full display. To gain mitigation, defendants must show up prepared to demonstrate their best record to the sentencing judge. 

As to paying restitution before sentencing, no question that most defense lawyers would prefer to show up on sentencing day ready to tell the court that their client has made full restitution to all victims and should serve no prison time. But paying full restitution during the presentence period is not always possible. 

In fact, the ABA has reported that the government collects about 10% of restitution judgments in total, rarely before the sentencing hearing. 

When paying full restitution is not possible, sentencing judges say they still appreciate some effort by the defendant to make victims whole, no matter how small. Even small efforts at restitution help convey to the court that the defendant is serious about making amends, paying their debt to society, and reconciling with the community.

Definition of Restitution

Restitution in law is the process to make crime victims whole by reimbursing them for financial losses incurred due to a person’s criminal conduct. Restitution in the federal criminal system seeks to address the victims’ losses and restore them to their financial status before the crime occurred. 

What is the goal of restitution?

Restitution aims to make the victims of a crime whole by ordering the defendant to pay back the losses. Restitution exists to hold people partially or fully accountable for the financial losses they directly caused or the loss amount their victims suffered. 

Should people pay restitution before the sentencing hearing?

No one but the defendant and their legal counsel can decide, depending on the circumstances of the case, including the defendant’s ability to pay.

People should realize that sentencing judges consider the defendant’s approach to restitution as evidence of sincere remorse and acceptance of responsibility.

Views from sentencing judges

Sentencing judges want to know at sentencing what, if anything, a defendant has done to own up to their mistake and show sincere remorse. 

Restitution attempts help the court evaluate remorse and accountability. Judges want to know that defendants have concern for the victims of their crimes and are willing to take steps to make victims whole if possible. 

Sentencing judges want to know if the defendant has truly come to grips with the impact of their crime. Acknowledging the victims and taking steps to make victims whole is a powerful way to impact the sentencing outcome.

For these reasons, defendants should always consider addressing the court at their sentencing hearing, using the allocution statement as an opportunity to acknowledge the harm suffered by the victim(s) and address restitution. 

Sentencing judges want to know what the defendant has been doing since the crime and whether the defendant paid restitution. Even a small amount shows the defendant’s concern for the victims. Any efforts towards restitution can be a powerful way of owning up to the offense.

Moreover, sentencing judges understand that most defendants cannot pay full restitution to their victims before sentencing. However, they want to see that the defendant has the right attitude and is willing to put forth some effort.

And defendants have to realize that their financial conduct between the arrest and the sentencing hearing, including employment, lifestyle choices, travel, and restitution, could affect their sentencing outcome. 

The last thing the defendant needs at sentencing is for the US Probation Office to tell the judge that the defendant has been living large while on pretrial and has made no effort to pay back restitution. 

Simply put, many judges consider restitution as an indication of sincere remorse and owning up to their mistake.

Some defendants are hesitant to deal with the issue of restitution prior to sentencing. However, it is never too early to consider all the sentencing issues. Statistically speaking, most federal criminal defendants will face a sentencing judge. The US Sentencing Commission reports that 93 percent of federal criminal defendants wind up pleading guilty. Of the remaining 7 percent who go to trial, the government prevails over 2/3 to 3/4 of those cases. 

As such, there is a 99 percent chance that a federal defendant will wind up in front of a sentencing judge. Among them, about 86 percent get prison time. It is never wasted effort to prepare for sentencing.

KEY TAKEAWAYS FOR DEFENDANTS

  • Judges appreciate hearing from defendants at sentencing allocution;
  • Show up to the sentencing hearing prepared to address the court; do not try to wing it; 
  • Be ready to show the sentencing judge documented accountability and remorse;
  • Make sure that what the probation officer hears during the presentence investigation report is consistent with what the sentencing judge hears on sentencing day;
  • Don’t ignore even small efforts towards restitution; defendants should consider doing whatever is possible;
  • Acknowledge and address the victim(s) and anyone who is hurting due to the criminal offense.

The team at Prison Professors works with clients and their counsel to help them prepare a sentencing mitigation plan.

How will Elizabeth Holmes handle pre-sentence restitution?

In several months we will witness the sentencing hearing for Elizabeth Holmes, recently convicted of wire fraud in the amount of $144 million. No doubt she is facing a restitution order of at least that much. In preparing for the hearing, Holmes has some serious thinking to do regarding restitution. Maybe her sentencing judge realizes that the numbers in her unique case are so astronomical that there would be no point in making token restitution payments to show her good faith. It is impossible to predict how Judge Edward Davila will judge her on this issue. 

All we can say at this point is that Holmes and her team must consider the issues of restitution, remorse, acceptance of responsibility, accountability, and concern for the victims as they prepare her sentencing mitigation plan.

CONCLUSION

Restitution is not always an all-or-nothing thing for sentencing judges on sentencing day. Sometimes, it is not necessarily even about money.

Even the toughest sentencing judges appreciate a defendants’ well-meaning attempts to make victims whole as best they can under their  circumstances. Mentioning the victim(s) and showing concern can be hugely impactful, and is the least the defendant should do at the hearing.

The sentencing judge does not want to hear that the defendant has been hiding money, living lavishly, and ignoring restitution to victims.

For a successful sentencing hearing, defendants should take steps to craft a sentencing mitigation strategy as early in the criminal justice process as possible.

Prison Professors, an Earning Freedom company, works alongside (not in place of) civil and criminal defense counsel to help clients proactively navigate through investigations and prosecutions. Our team also helps clients prepare mitigation and compliance strategies.

If you have any questions or are uncertain about any of the issues discussed in this post, schedule a call with our risk mitigation team to receive additional guidance.

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