Plea Bargains and Restitution

Plea bargains often involve an agreement for the defendant to plead guilty to a lesser offense and for the government to dismiss charges of a greater offense. When the bargain also includes an agreement for the defendant to pay restitution to the victim, does it matter that only the greater, dismissed charge carries a restitution requirement, and the lesser charge to which the defendant pleads guilty does not?

No, it does not matter in federal criminal cases, the Ninth Circuit decided yesterday in Jane Doe v. U.S. District Court (Alexander), No. 22-70098.

The key to the case is 18 U.S.C. § 3663(a)(3). The first two paragraphs of subsection (a) describe when a court may order restitution, who is considered a victim, and how the amount is determined. But paragraph (3) adds simply, “The court may also order restitution in any criminal case to the extent agreed to by the parties in a plea agreement.”

That paragraph means what it says. This is additional authority to order restitution, on top of the other provisions. If the defendant agrees to it, the court can order it.

In enacting 18 U.S.C. § 3663(a)(3), Congress expressly granted district courts authority to order restitution whenever a defendant has agreed in a plea agreement to pay restitution. Defendant did so. Therefore, pursuant to the plain meaning of the statutory text and consistent with binding precedent, the district court had statutory authority to order restitution.

This is, of course, a case of federal statutory interpretation. Restitution in state courts will depend on the wording of the state law.