At a restitution hearing, a federal judge decides how much money the defendant owes the victim for losses caused by the crime, after reviewing the victim’s documented expenses, hearing any challenges from the defense, and weighing a probation officer’s report. The hearing can take place at sentencing or up to 90 days afterward if the losses aren’t fully known yet.1Office of the Law Revision Counsel. 18 U.S. Code 3664 – Procedure for Issuance and Enforcement of Order of Restitution How long it lasts and how contested it gets depend on how well each side has prepared.
When the Hearing Takes Place
Many restitution decisions happen inside the sentencing hearing itself. When losses are documented and uncontested, the judge rules on restitution the same day as the sentence. When the picture is messier — ongoing medical care, repair bills still coming in, multiple victims — the court can set a separate hearing. Federal law gives the judge up to 90 days after sentencing to issue a final order.1Office of the Law Revision Counsel. 18 U.S. Code 3664 – Procedure for Issuance and Enforcement of Order of Restitution
If you’re a victim still in treatment or still waiting on bills, tell the prosecutor before sentencing. It’s easier to delay the number than to revise it later.
The Groundwork Before Anyone Walks In
Most of the real work happens before the hearing. The court orders a probation officer to prepare a report covering each victim’s losses and the defendant’s finances. The officer contacts identified victims, tells them what amounts are being considered and when the hearing will occur, and sends an affidavit form for them to document their losses.1Office of the Law Revision Counsel. 18 U.S. Code 3664 – Procedure for Issuance and Enforcement of Order of Restitution
The defendant has their own affidavit to file. Federal law requires a sworn statement to the probation officer describing all assets, income, earning ability, debts, and the financial needs of any dependents.1Office of the Law Revision Counsel. 18 U.S. Code 3664 – Procedure for Issuance and Enforcement of Order of Restitution The defendant carries the burden of proving those circumstances, so gaps in the paperwork cut against them.
The report that lands on the judge’s desk usually becomes the baseline for the hearing itself.
Step by Step Inside the Courtroom
The prosecutor goes first. Expect a presentation of the victim’s losses, with each expense traced back to the crime. Because the probation report is already in the judge’s hands, the prosecutor often focuses on reinforcing the strongest evidence or addressing items the defense is likely to challenge.
The victim may testify under oath. Federal victims have the right to be reasonably heard at the hearing.2U.S. Department of Justice. Victim Rights In practice that means explaining the losses, answering the prosecutor’s questions, and facing cross-examination from the defense.
The defense then gets its turn. A defense attorney can question whether a medical procedure was actually tied to the crime, whether a repair estimate is inflated, or whether lost-wage calculations include time off for unrelated reasons. The defense can also put on its own evidence: competing appraisals, insurance records showing part of the loss was already covered, or financial documents the defendant wants in the record.
Both sides make closing arguments. The judge either rules from the bench or takes the matter under advisement and issues a written order later.
The Standard the Judge Uses
Disputes get resolved by a preponderance of the evidence, meaning each loss only has to be more likely true than not.1Office of the Law Revision Counsel. 18 U.S. Code 3664 – Procedure for Issuance and Enforcement of Order of Restitution That’s a far lower bar than the beyond-a-reasonable-doubt standard at trial. Credible testimony paired with reasonable documentation is typically enough.
The judge asks two questions about every claimed amount: did the crime actually cause this loss, and is the figure reasonable? A hospital bill for the injury itself is a clear yes. A bill for a pre-existing condition treated during the same visit is where judges start drawing lines and excluding anything that looks speculative.
What Victims Should Bring
Strong restitution claims are built on paper, not memory. Useful documentation includes:
- Medical expenses: hospital bills, pharmacy receipts, and invoices for therapy or rehabilitation
- Property losses: repair estimates, replacement receipts, or professional appraisals for stolen or destroyed items
- Lost income: pay stubs, tax returns, or a letter from an employer confirming missed work and lost wages
- Other out-of-pocket costs: transportation to medical appointments, childcare during court proceedings, or temporary housing
Vague estimates don’t hold up well. “I think the repairs cost about $3,000” is weaker than a dated invoice for the exact amount.
What Defendants Should Bring
Beyond the required financial affidavit, a defendant who plans to contest the victim’s numbers needs specific evidence. Generic objections rarely move a judge. Concrete alternatives do: a competing repair estimate, proof that insurance already paid part of the loss, or records showing the victim’s lost-wages math includes unrelated time off.
If the case involves discretionary restitution, the defendant should also be ready to document inability to pay. That evidence can genuinely reduce the amount the judge orders in a discretionary case.
Does the Defendant’s Ability to Pay Change the Amount
Only sometimes, and this is where a lot of defendants are caught off guard. For certain federal crimes — crimes of violence, property offenses, fraud, tampering with consumer products, and theft of medical products, where an identifiable victim suffered injury or financial loss — restitution is mandatory. The judge must order the full proven amount, and the defendant’s inability to pay doesn’t reduce it.3Office of the Law Revision Counsel. 18 U.S. Code 3663A – Mandatory Restitution to Victims of Certain Crimes In those cases, financial hardship affects only the payment schedule, not the total.
For federal offenses outside that mandatory category, judges have more room. The court can weigh the defendant’s resources, earning ability, and dependents, and can even decline to order restitution if doing so would complicate sentencing too much.4Office of the Law Revision Counsel. 18 U.S. Code 3663 – Order of Restitution State courts vary; some mirror the federal mandatory model, others give judges broad discretion across the board.
What the Order Does Once It’s Entered
The restitution order sets the total owed, the payment schedule, and how payments must be made. For incarcerated defendants, payments often start on release, though the court can order payments from prison wages or other available funds sooner. Payments usually flow through a court clerk or probation department, which forwards the money to the victim.
A federal order carries real teeth. It automatically becomes a lien against the defendant’s property, and the government can collect using the same tools used for civil judgments, including wage garnishment subject to the limits in the Consumer Credit Protection Act.5Office of the Law Revision Counsel. 18 U.S. Code 3613 – Civil Remedies for Satisfaction of an Unpaid Fine A defendant on probation or supervised release who willfully refuses to pay can have that release revoked and end up back in custody.