Comment   |   Volume 166, Issue 5

Unsettled: Victim Discretion in the Administration and Enforcement of Criminal Restitution Orders

By
166 U. Pa. L. Rev. 1293 (2018)

April 2018












In 2008, a prominent Philadelphia businessman, Donald Dougherty, Jr., was charged with nearly one hundred counts of fraud, theft, bribery, and tax evasion. Dougherty was accused of engaging in illegal accounting practices as the owner, president, and sole shareholder of Dougherty Electric, Inc., an electrical contracting business. As a result of the accounting scheme, Dougherty defrauded the United States government of well over $1 million in taxes. In addition, Dougherty defrauded IBEW Local 98, the union with which his business contracted, of more than $670,000 in contributions owed to the IBEW benefit and pension plan. Dougherty pled guilty to all charges.

After Dougherty entered his plea, the court sentenced him to twenty‐four months in prison. In addition, pursuant to the federal Mandatory Victims Restitution Act (MVRA), the court ordered Dougherty to repay the victims of the crime for the losses suffered, $2.3 million owed in total to the United States government and the IBEW. The colorful facts of the case aside, nothing about the proceeding was particularly unusual.

That is until March 2016, when Dougherty petitioned the District Court for the Eastern District of Pennsylvania to have his restitution payment “marked as satisfied.” Dougherty had made a lump‐sum payment of $2.5 million to the federal government in December 2015, which fully satisfied his outstanding restitution and back taxes. Additionally, Dougherty had entered into a settlement agreement with the IBEW in 2011. By the terms of the settlement, Dougherty paid a lump sum of $200,000 to the union in exchange for “satisfaction of all obligations owed to IBEW and the IBEW Benefit Funds arising from the conduct underlying the restitution order.” In his petition, Dougherty contended that he had fulfilled his restitution obligation and the court should recognize as much.

The court has yet to rule on Dougherty’s petition. But the question it raises is a difficult one—whether a victim and defendant may settle a restitution payment under the MVRA is one that courts have not fully resolved.

The MVRA is the federal statute that regulates restitution for the most serious federal crimes. Congress enacted the MVRA to bring the federal restitution scheme more in line with the objectives of the victims’ rights movement by forcing sentencing judges to enter orders of restitution for the full amount of a victim’s loss. In passing the MVRA, Congress severely restricted judicial discretion in ordering restitution at the time of sentencing. In the same legislative act, Congress also bolstered the MVRA’s enforcement clause to ensure victims could control their participation in the restitution process. These two provisions are in tension when courts seek to apply the MVRA: although both provisions are intended to promote victims’ rights, they come into conflict when determining the scope of a victim’s ability to settle outstanding restitution orders.

This Comment argues that the enforcement provisions of the MVRA provide mechanisms by which a willing victim may settle an outstanding restitution order with a criminal defendant. The MVRA’s limitation on judicial discretion is not a limitation on a victim’s ability to dispose of restitution in a way she sees fit. Courts and judges err when they conflate a lack of judicial discretion in ordering restitution with a lack of victim discretion in settling such an order.

Not only is this a permissible reading of the statutory scheme, it is also a preferable one. The benefits of such an approach are twofold. First, it would safeguard the right of victims to participate in the criminal justice process, a central tenet of the victims’ rights movement. Second, for at least a certain segment of the victim community, it would increase victim satisfaction with restitution.

Unsettled: Victim Discretion in the Administration and Enforcement of Criminal Restitution Orders - PennLawReview.com

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Mitchell N. Berman