Congress' stated objective that the "wrongdoer make [good], to the degree possible, the harm he has caused the victim." Victim and Witness Protection Act of 1982, Pub.L. 97-291, 1982 U.S.Code Cong. & Admin. News 2515, 2536; see also Antiterrorism and Effective Death Penalty Act of 1996, Pub.L.104-132, § 201 et seq., 110 STAT. 1214; United States v. Ferranti, 928 F. Supp. 206, 217-219, 220-221 (E.D.N.Y. 1996) (history of restitution, and its increasing acceptance in the United States); U.S.S.G. § 5E1.1(a) ("The court shall -- (1) enter a restitution order if such an order is authorized under 18 U.S.C. §§ 3663-3664. . .") (emphasis added).
3. Probation Department to Ensure Good Faith Compliance
A third option is to set a fixed installment schedule and enlist the Probation Department's services "to ensure good faith compliance." United States v. Lilly, 80 F.3d 24, 29 (1st Cir. 1996). Under this approach, the Probation Department could reduce a defendant's restitution installment amount in order to preserve a defendant's ability to pay child support as within the bounds of "good faith compliance." While this route is an improvement over the above two in that allows a balancing of the shifting interests rather than categorical exclusion of one, it merely winks and nods at the court of appeals' holding in Porter, circumventing it in the end. That the court of appeals would approve such a process is doubtful, since it effectively gives the Probation Department the same sort of nondelegable decision-making power prohibited by Porter, but within the narrower confines of "ensuring good faith compliance."
4. Pre-Sentence Recommendation From Probation Department
A fourth option would be to request, prior to sentencing, that the Probation Department make a recommendation to the court regarding the need for an installment plan, its timing and its schedule. See e.g., United States v. Miller, 77 F.3d 71, 77 (4th Cir.1996). Enlisting the support of the Probation Department in this way would provide the same benefit of reducing workload and improving efficiency as the pre-Porter practice. It would not run afoul of Porter since the Probation Department's recommendation would be just a suggestion, subject to the court's ultimate approval and authority. See, e.g. United States v. Raddatz, 447 U.S. 667, 683, 100 S. Ct. 2406, 2416, 65 L. Ed. 2d 424 (1980) (delegation in Federal Magistrate Act does not violate Article III where ultimate decision is made by the district court). This technique is beneficial, but does not solve the problem. The court would still be bound to establish a fixed plan based on the Probation Department's recommendation, leaving the conundrum that the instant case presents -- unpredictable changes in income and assets -- unaddressed. It is no more likely that the Probation Department has a crystal ball than it is that the court does.
5. Fixed Installment Schedule and Post-Sentence Modification
A final option is that the court establish a fixed installment schedule, but retain the power to modify it. The court would request that the Probation Department, United States Attorney, defendant, or restitutee notify the court of the need for temporary or permanent modification of the installment schedule should defendant's economic circumstances change after imposition of sentence. The child or family support obligee would be instructed to advise the Probation Department or the United States Attorney if defendant's support obligations were not being met; the Probation Department, the United States Attorney or defense counsel would notify the court. The judgment should, under this alternative, specify that the installment plan is subject to modification. A stipulation from the government, defendant and restitutee of the right to modify is probably not required, but would be useful as a notice device. Should the court determine that a hearing on modification is necessary, it would need to provide notice to defendant, the defendant's family, the government and the restitutees.
This procedure would have the distinct disadvantage of being burdensome to the sentencing court. Its administration would likely perpetuate the court's involvement in cases long after the sentence has been imposed and the case put out of mind. Such continuing micro-management is not desirable. Nor is there language in unamended sections 3663 and 3664 of Title 18 -- the applicable sections on restitution -- that directs a court to proceed in this manner after sentencing. Yet, in spite of this silence and the attendant burdens already noted, other statutory provisions support the conclusion that Congress did not intend that restitution installment plans be so rigid that they might result in depriving a family or child of the support owed by a defendant. Provisions relating to restitution for crimes of sexual abuse and telemarketing fraud, for instance, indicate that post-sentence modification of the restitution order is an appropriate means to avoid this consequence. See 18 U.S.C. §§ 2248(d), 2327(d)("[a] victim or the offender may petition the court at any time to modify a restitution order as appropriate in view of a change in the economic circumstances of the offender"). The new mandatory restitution provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") support the same conclusion.
a. 1996 Mandatory Victim Restitution Act Procedures
The 1996 Mandatory Victim Restitution Act, although not applicable to defendant's conviction, which occurred before AEDPA's enactment, see Pub.L.No. 104-132, § 211, 110 STAT. 1241 (amendments effective for sentencing proceedings in cases in which the defendant is convicted on or after date of enactment, April 24, 1996), provides a particularly instructive framework, filling in some of the gaps left by Porter. Its requires that defendants convicted of certain crimes -- including crimes of violence, felony crimes against property, and product tampering -- pay "full restitution" to identifiable victims. See AEDPA, Pub.L.No.104-132, § 204(c)(1)(A), 110 STAT. 1229 (codified at 18 U.S.C. § 3663A(c)(1)(A)). While primarily intended to make the federal criminal justice system more victim-centered, a subsidiary goal of the new provisions was to establish a uniform procedure for restitution orders and to improve collection and enforcement. See S. Rep. No. 104-179, at 13, reprinted in 1996 U.S. Code Cong. & Admin. News 924, 926.
Congress envisioned a flexible system that would enable a court to order restitution for a defendant such as Golino while insulating from adverse affect his obligation to pay child support. Amended section 3664 mandates that the sentencing court consider the defendant's financial resources, assets, projected earnings and income, and financial obligations, "including obligations to dependents," when determining and specifying the manner in which, and schedule according to which, restitution is to be paid. AEDPA, Pub.L.No. 104-132, § 206(f)(2), 110 STAT. 1234 (codified at 18 U.S.C. § 3664(f)(2)). Prior to sentencing, the defendant is required to file an affidavit with the probation officer detailing this information. Pub.L.No. 104-132, § 206(d)(3) (codified at 18 U.S.C. § 3664(d)(3)). After consideration of the subsection 3664(f)(2) factors, the court may order the defendant to pay restitution in a single lump-sum, at specified intervals or in-kind payments. Pub.L.No. 104-132, § 206(f)(3)(A) (codified at 18 U.S.C. § 3664(f)(3)(A)). In addition, the statute does not require the court to order full restitution where it finds that the defendant is financially incapable of making payment:
a restitution order may direct the defendant to make nominal periodic payments if the court finds from facts on the record that the economic circumstances of the defendant do not allow the payment of any amount of a restitution order, and do not allow for the payment of the full amount of the restitution order in the foreseeable future under any reasonable schedule of payments.
Pub.L.No. 104-132, § 206(f)(3)(B) (codified at 18 U.S.C. § 3664(f)(3)(B)).
Amended section 3664 also indicates that the sentencing court should maintain continued involvement and oversight of a restitution order. See also AEDPA, Pub.L.No. 104-132, § 207, 110 STAT. 1239 (codified at 18 U.S.C. § 3613A) (providing for hearing on delinquency or default). The court must be notified in the event of a change in the defendant's ability to pay, and it retains the ability to subsequently adjust the payment schedule. Section 3664 reads, in relevant part:
A restitution order shall provide that the defendant shall notify the court and the Attorney General of any material change in the defendant's economic circumstances that might affect the defendant's ability to pay restitution. The court may also accept notification of a material change in the defendant's economic circumstances from the United States or from the victim. . . . Upon receipt of the notification, the court may, on its own motion, or motion of any party, including the victim, adjust the payment schedule, or require immediate payment in full, as the interests of justice require.
See Pub.L.No. 104-132, § 206(k) (codified at 18 U.S.C. § 3664(k) (1996); see also, Pub.L.No. 104-132, § 207(b)(3) (codified at 18 U.S.C. § 3572(d)(3)) (same, as applied to fines).
Congress recognized that "the need for finality and certainty in the sentencing process" requires that determination of the amount and terms of restitution "be made quickly, but also recognized that justice requires that this particular aspect of the criminal sentence [, restitution,] be subject to review in light of changed circumstances." See S. Rep. No. 104-179, at 20, reprinted in 1996 U.S. Code Cong. & Admin. News 924, 933. Thus,
should the defendant's economic circumstances change to allow greater restitution payments, these payments should be required. Similarly, if the defendant's economic circumstances change so that the defendant's ability to pay is impaired, the court may adjust the payments accordingly without discharging the defendant's obligation to pay full restitution.