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Home > School of Law > Student > Law Review > Vol. 46 > Iss. 3

 

Western New England Law Review

Abstract

Consider a situation where a defendant has committed a crime that in some way harmed a victim. The court then decided to enter a judgment ordering the defendant to pay restitution to the victim as part of their criminal sentence. Typically, the victim participates in the restitution order and receives the funds they are owed. But what happens in those rare circumstances where the victim does not want to accept these payments? Where do those unclaimed funds go?

These situations are governed by the Mandatory Victims Restitution Act of 1996 (MVRA), 18 U.S.C. §§ 3663A–3664. The MVRA requires restitution and states that payments may neither expire nor be modified except in limited circumstances. Additionally, victims are generally not allowed to modify the defendant’s restitution sentence through releases or settlements, as restitution is a criminal sentence, and therefore any modification must be done through the courts. At the same time, the MVRA does not require a victim to accept the restitution payments, as the victim cannot be required to participate in any part of the sentence. Victims who choose not to participate are allowed to assign and redirect their interest in the restitution. However, the MVRA is silent as to a court’s authority to redirect the funds if the victim neglects to do so. Circuits are split regarding whether the courts possess such a power.

The majority of circuits that have ruled on this issue do not believe that the MVRA allows courts to redirect unclaimed funds. They believe that the goal of the MVRA is to compensate the defendant’s particular victim and that goal cannot be accomplished by redirecting funds. The minority believes that the MVRA’s silence leaves room for the courts to fashion the practical solution of allowing for disclaimed funds to be redirected to the Crime Victims Fund.

This Note will argue that both law and policy dictate that courts have the power to redirect disclaimed funds. This Note will begin by looking at the wording of the MVRA and argue that the principles derived from the statute support the interpretation of allowing for redirection of disclaimed funds. It will then argue that the goals of the MVRA and restitution generally are both compensatory and punitive in nature. Further, both goals would be better served by allowing disclaimed funds to be put to positive use, rather than allowing disclaimed funds to simply accumulate.

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