Extended discussion of restitution by Second Circuit

Today in US v. Amato, No. 06-5600 (2d Cir. Aug. 21, 2008) (available here), the Second Circuit had occassion to discuss federal criminal restitution.  Here is a snippet from the start of the opinion:

Restitution is a complex subject because civil and criminal restitution are somewhat different. The civil rule is often stated under the rubric of unjust enrichment: “A person who has been unjustly enriched at the expense of another is required to make restitution to the other.” Restatement (First) of Restitution § 1 (1937). In the criminal law, victims’ rights are generally the focus of restitution provisions, including those contained in the Mandatory Victims Restitution Act of 1996 (MVRA), the criminal statute with which we deal on this appeal. Its purpose is primarily to restore the victim to his or her prior state of well-being, and to that end to require federal “criminal defendants to pay full restitution to the identifiable victims of their crimes.”  S. Rep. No. 104-179, at 12-13 (1995).

Under the MVRA, restitution must be ordered without consideration of the defendant’s economic circumstances. See 18 U.S.C. § 3664(f)(1)(A).  Consequently, while going down the road to committing a crime may be as easy as the “descent to Avernus,” the payment of restitution under the MVRA can be as hard as the return to view “etherial light” [footnote quoting Virgil’s Aeneid omitted]. The question we must address is not whether the defendants are capable of making this payment but merely whether the items included in the restitution order fall within the scope of the MVRA, as well as whether the order was otherwise properly calculated.