Chapter 3: Financial Requirements and Restrictions (Probation and Supervised Release Conditions)
A. Statutory Authority
Under 18 U.S.C. § 3563(b)(2), the court may provide that the defendant “make restitution to a victim of the offense.”
Under 18 U.S.C. § 3563(b)(22), the court may provide that the defendant “satisfy such other conditions as the court may impose.”
Under 18 U.S.C. § 3603(7), the probation officer shall “keep informed concerning the conduct, condition, and compliance with any condition of probation, including the payment of a fine or restitution of each probationer under his supervision and report thereon to the court placing such person on probation and report to the court any failure of a probationer under his supervision to pay a fine in default within thirty days after notification that it is in default so that the court may determine whether probation should be revoked.”
Under 18 U.S.C. § 3664(d)(3), each defendant “shall prepare and file with the probation officer an affidavit fully describing the financial resources of the defendant, including a complete listing of all assets owned or controlled by the defendant as of the date on which the defendant was arrested, the financial needs and earning ability of the defendant and the defendant's dependents, and such other information that the court requires relating to such other factors as the court deems appropriate.”
B. Sample Condition Language
You must provide the probation officer access to any requested financial information and authorize the release of any financial information. The probation office may share financial information with the U.S. Attorney’s Office.
You must not incur new credit charges, or open additional lines of credit without the approval of the probation officer.
If the judgment imposes a financial penalty, you must pay the financial penalty in accordance with the Schedule of Payments sheet of this judgment. You must also notify the court of any changes in economic circumstances that might affect the ability to pay this financial penalty.
- This condition serves the statutory sentencing purposes of deterrence, public protection, and rehabilitation. 18 U.S.C. § 3553(a)(2)(B)-(D). For probation cases, this condition may serve the statutory purposes of reflecting the seriousness of the offense, promoting respect for the law, and providing just punishment for the offense. 18 U.S.C. § 3553 (a)(2)(A).
- This condition enables the probation officer to satisfy the statutory requirements to keep informed of the conduct and condition of the defendant, report the defendant’s conduct and condition to the sentencing court, and aid the defendant and bring about improvements in his or her conduct and condition. 18 U.S.C. §§ 3603(2)-(3).
- Special conditions such as financial disclosure and prohibitions against incurring new credit may help the probation officer set the appropriate collection parameters for monetary conditions, deter and detect economic crimes, verify and monitor self-employment, or assist disorganized, impulsive defendants to gain control of their financial situation.
D. Method of Implementation
Investigating Financial Status
- In cases with conditions requiring payment of monetary penalties or obligations and those with identified problems related to finances, probation officers are to conduct ongoing verification of the defendant’s financial status and, as necessary, provide assistance in securing and managing income.
- Probation officers are to obtain a signed authorization from the defendant to obtain financial records. When obtaining this authorization, officers notify defendants that the authorization provides officers with ongoing access to credit reports for 90 days from the date of the authorization and authorizes the transfer of financial information obtained by the probation officer to the U.S. Attorney’s Office for the collection of outstanding monetary penalties.
- Probation officers are to update cash flow information and net worth statements by having the defendant complete a questionnaire. Any new information provided by the defendant should be compared with records obtained from other independent sources.
Enforcing Monetary Penalties
- When a defendant sentenced to a term of supervision is also sentenced to pay a special assessment, fine, and/or restitution, payment of the financial penalty is routinely added as a condition of supervision. The condition also requires defendants to notify the court of any material changes in their economic circumstances that might affect their ability to pay.
- Probation officers are to assist in the execution of financial sentences by updating financial information, determining necessary living expenses, recommending lump-sum payments and/or payment schedules designed to collect the maximum amount of money reasonably possible in the shortest period of time, and using graduated interventions designed to bring defendants into compliance when they fail to pay their outstanding penalties.
Establishing Payment Parameters
- After updating the financial investigation, probation officers are to determine the defendant’s current ability to pay a lump sum and, if not able to pay in full, a recommended payment schedule. Unless otherwise ordered by the court, the payment plan should reflect the maximum payment that the defendant can reasonably manage given documented income and necessary expenses. Compliant defendants who cannot legitimately pay their obligation during the term of supervision, despite their best efforts, should be permitted to terminate their terms of supervision as otherwise appropriate. If the required payments are less than would be necessary to pay the total financial penalty before expiration of supervision, contact should be made with the United States Attorney, who may submit a petition for remission or pursue collection of the unpaid balance after expiration (18 U.S.C. § 3573).
- Probation officers may need to request modification of the conditions, as necessary, to modify or set the payment schedule, provide the investigative tools required to maintain appropriate verification of and control over financial status (e.g., financial disclosure, travel restrictions), and/or modify the requirements of other conditions that may unnecessarily impede the defendant’s ability to meet the terms of financial sentences.
Monitoring and Intervention
- Probation officers can maintain an ongoing picture of a defendant’s financial condition by close scrutiny of the financial information submitted by the defendant and independent verification (e.g., credit checks, review of external sources of financial information, home visits, and contacts with employers). Probation officers should periodically conduct a comparative assessment of the financial documents obtained to review their consistency; identify any unusual deposits, withdrawals, or purchases; and determine spending patterns.
- If needed, probation officers should also assist in job referrals, employment counseling, or social services.
- Probation officers should encourage defendants to record how their income is spent and should audit defendant spending patterns. Once the spending pattern is determined, probation officers can suggest ways to reduce unnecessary expenses to help a defendant reduce debt, stay within a budget, and meet other monetary obligations; or they can refer the defendant for more in-depth financial or employment counseling. If monitoring and intervention activities reveal the existence of non-committed cash flow or additional assets, the payment plan should be revised accordingly.
- Probation officers are also to respond immediately to indications of heightened risk by formulating strategies designed to prevent or ameliorate the effects of noncompliant behavior. Among the early warning signs that a defendant may be at risk for recidivating are unexplained assets or a lifestyle that does not match income.
For defendants who qualify for low-risk supervision standards under Judicial Conference policy (see: Chapter 1, Section II(C)(1)), in lieu of the requirements described above regarding enforcing monetary penalties and monitoring and intervention, probation officers or other probation office staff (under the direction of probation officers) should review the defendant’s written supervision reports to assess the defendant’s payment ability and/or examine electronic payment reporting systems four times per year to assess the defendant’s compliance with payment requirements. Probation officers or other probation office staff (under the direction of probation officers) should initiate contact with the U.S. Attorney’s Office as soon as practicable.