Applicability of Interest and Penalty Provisions of the Criminal Fine Enforcement Act to Fines Imposed as a Condition of Probation ( 1988 )

Applicability of Interest and Penalty Provisions of the Criminal
Fine Enforcement Act to Fines Imposed as a Condition of
Probation
A pplication o f the interest and penalty provisions o f the Crim inal Fine Enforcem ent Act o f 1984 is
m andatory in the case o f late paym ent or nonpaym ent of a fine im posed strictly as a condition o f
probation.
June 15, 1988
M em orand um O p in io n f o r t h e D ir e c t o r
E x e c u t i v e O f f ic e fo r U n it e d States A ttorneys
This memorandum responds to your office’s inquiry as to whether the interest
and penalty provisions of the Criminal Fine Enforcement Act of 1984,18 U.S.C.
§§ 3565(b)(2), 3565(c)(l)-(2), apply in the case of late payment or nonpayment
of a fine imposed strictly as a condition of probation. As set forth below, we con­
clude that the Criminal Fine Enforcement Act does mandate application of those
provisions to fines imposed strictly as a condition of probation.
Background
The Criminal Fine Enforcement Act of 1984, Pub. L. No. 98-596,98 Stat. 3134(“Act”), contains a series of provisions relating to the imposition and collection
of fines in federal criminal cases.1Generally, these provisions (1) establish stan­
1 As a preliminary matter, it is important to note that the federal fine provisions have an unusual and compli­
cated legislative history. Two different bills, both pertaining to the imposition and collection o f criminal fines and
penalties, were passed by Congress and signed into law by the President during the same month. The first o f these
two bills, the Comprehensive C nm e Control Act of 1984 (“Crime Control Act"), Pub. L. No. 98-473,98 Stat. 1837,
1976, was enacted October 12, 1984. Title U o f the Crime Control Act added three new chapters to tide 18 of the
United States Code that pertained to criminal fine collection: chapter 227 (Sentences), chapter 228 (Imposition,
Payment and Collection o f Fmes), and chapter 229 (Postsentence Administration). Chapter 228 was to become ef­
fective immediately, while chapters 227 and 229 were to become effective on November 1,1986. However, on D e­
cember 26, 1985, Congress enacted the Sentencing Reform Amendments Act of 1985, Pub. L. No. 9 9 -2 1 7 ,9 9 Stat.
1728, which delayed the effective date o f chapters 227 and 229 until November 1, 1987. On October 30, 1984, the
President signed a separate fine collection measure, the Criminal Fine Enforcement Act o f 1984 (“CFEA"), Pub.
L. No. 98-5 9 6 ,9 8 Stat. 3134, which, among other things, restored the text o f chapters 227 and 229 with language
identical to text existing p nor to passage o f the Cnme Control Act In addition, the CFEA repealed section 228,
which, under provisions o f the Crime Control Act, was to become effective immediately.
Under the terms o f the CFEA, restored chapters 227 and 229 became effective January 1, 1985, and apply
to offenses committed on or after that date. As mentioned above, chapters 227 and 229 of the Crime Control Act
look effect on November 1,1987. Accordingly, the interest and penalty provisions found in the Criminal Fine En­
forcement Act o f 1984, which are pertinent to this discussion, effect only those crimes committed after December
31, 1984 and pnor to November 1, 1987.
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dards for the imposition of fines by federal judges; (2) increase fine levels for all
federal offenses; (3) provide improved fine collection procedures; and (4) create
incentives to the timely payment of fines. Section 3565(b)(1)(A) provides that a
judgm ent imposing the payment of a fine or penalty “shall . . . provide for im­
mediate payment unless, in the interest of justice, the court specifies payment on
a date certain or in installments.” Section 3565(b)(2) states that “[i]f the judg­
ment specifies other than immediate payment of a fine or penalty, the period pro­
vided for payment shall not exceed five years, excluding any period served by
the defendant as imprisonment for the offense. The defendant shall pay interest
on any amount payment of which is deferred under this paragraph.” In addition,
the statute requires the defendant to pay interest on any amount of a fine or penalty
that is past due. 18 U.S.C. § 3565(c)(1).
Federal district courts “may suspend the imposition or execution of sentence
and place the defendant on probation for such period and upon such terms and
conditions as the court deems best.” 18 U.S.C. § 3651.2 The court may require
the defendant to “pay a fine in one or several sums.” Id. If, at the end of the pe­
riod o f probation the defendant has not paid the fine, the defendant is still oblig­
ated to pay the fine, which is to be collected in the manner set forth in section
3565. Id.The Executive Office for United States Attorneys (“EOUSA”) contends that
if the court enters a judgment o f conviction, suspends imposition or execution of
a sentence and, as a condition o f probation, requires the defendant to pay a fine
as provided under 18 U.S.C. § 3651, the collection and payment of the fine, in­
cluding the imposition of interest and penalties, is governed by section 3565.3
The EOUSA construes section 3565 to treat a fine imposed as a condition of pro­
bation (probation fine) in the same way in which it treats a “straight” fine, that
is, a fine imposed as a sentence.4 See 18 U.S.C. § 3565(b)(1).
The Administrative Office fo r the United States Courts (“AOUSC”), on the
other hand, contends that the interest and penalty provisions of the CFEA do not
apply to probation fines.5
The AOUSC notes that, historically, probation fines have always been treated
somewhat differently from straight fines and argues that the CFEA contemplates
a continuation of dual interest and penalty procedures.6
For the reasons outlined below, we conclude that the Criminal Fine Enforce­
ment Act of 1984 mandates application of the interest and penalty provisions of
section 3565 in the case of late payment or nonpayment of a fine imposed as a
condition of probation.
2 The court does not have such discretion when the judgm ent o f conviction is of an offense punishable by death
or life imprisonment. 18 U .S .C § 3651.
3 S ee M emorandum for Douglas W Kmiec, Deputy Assistant Attorney General, Office o f Legal Counsel, from
Laurence S. M cW horter, Acting Director, Executive Office for United States Attorneys (Apr 9, 1987).
4 Id.
5 See letter from David N. Adair, J r , Assistant General Counsel, Administrative Office of the United States
C ourts, to W illiam D. Andrews, United States Probation O fficer (Nov. 21, 1986).
6 Id.
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Discussion
We look first to the words of the statute to determine congressional intent.7 It
appears on the face of the statute that the CFEA’s interest and penalty provisions
are mandatory and apply to all fines. As previously mentioned, subsection 3565(c)
(1) states that the defendant shall pay interest on “any amount of a fine or penalty
. . . that is past due.” Subsection 3565(c)(2) states that if an amount owed by the
defendant “as a fine or penalty” is past due for more than ninety days, the de­
fendant shall pay a penalty equal to twenty-five percent of the amount past due.
There is no specific indication in either of those two subsections that Congress
intended the words “a fine or penalty” to exclude probation fines. Indeed, none
of the subsections of section 3565 that make a reference to fines use language
that can be interpreted on its face to be exclusionary in nature. On the contrary,
these subsections use all-inclusive language. For example, subsection (a)(1) per­
tains to “all criminal cases in which judgment or sentence is rendered, imposing
the payment of a fine or penalty, whether alone or with any other kind of pun­
ishment.” Subsection (a)(2), provides that a “judgment imposing the payment of
a fine or penalty” shall, with specified exceptions, be a lien in favor of the United
States upon all property and rights of property belonging to the defendant. Sub­
section (b)(1) states that a “judgment imposing the payment of a fine or penalty
sh all. . . provide for immediate payment” unless the court specifies payment on
a date certain or in installments.8 In sum, on its face section 3565 applies to all
fines, a class which includes probation fines.
The probation sections of the CFEA do not provide further enlightenment as
to whether Congress intended to treat probation fines in the same manner as
straight fines with respect to the interest and penalty provisions of section 3565.
Section 3651 empowers the court to “suspend the imposition or execution of sen­
tence and place the defendant on probation for such period and upon [further]
terms and conditions as the court deems best.” That section further provides that
the court may require the defendant to pay a fine in a lump sum or in several
sums. Section 3655 describes the duties of probation officers, including the re­
quirement to report to the court any failure of a probationer under his supervi­
sion to pay an amount due as a fine or as restitution. None of the sections per­
taining to conditions of probation make any mention of monetary penalties,
including interest payments, in the case of a failure to pay a probation fine.9 Nor
do those sections make any references to the interest and penalty provisions em ­
7 See, e g , Touche Ross & Co. v. Redinglon, 442 U.S. 560, 568 (1979).
8 See also subsection (d)(1), providing that except under specified circumstances the defendant shall pay to the
Attorney General “any amount due as a fine or penalty;” subsection (0 . which applies in circumstances in which
“a fine or penalty is imposed on an organization” and “a fine or penalty is imposed on a director, officer, employee,
or agent o f an organization;” and subsection (g), which sets forth procedures to be followed when “a fine or penalty
is satisfied as provided by law.”
9 The current law governing probation is embodied in chapter 231 of title 18. Pub. L. No. 98-473, tit. II, ch. II,
§ 212(a)(1),(2), 98 Stat 1987 (1984), repealed chapter 231 effective Nov 1, 1987, pursuant to section 235 of Pub
L No. 98-473, and amended by Pub. L. No. 99-217, § 4, 99 Stat 1728 (1985).
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bodied in section 3565;10 section 3561 ’s only specific reference to section 3565
is the statement that the fines shall be collected in the manner provided by sec­
tion 3565.
It also has been suggested that the CFEA’s identical treatment of straight fines
and probation fines for certain purposes should be read as a manifestation of Con­
gress’ intent that the two types of fines be treated identically throughout the Act
for other purposes, including application of the interest and penalty provisions
o f section 3565.11 For example, section 3561 of the CFEA provides that, like
straight fines, probation fines do not expire with the conclusion of criminal pro­
ceedings.12 Likewise, the two types of fines are handled identically with respect
to collection.13 Although certainly not dispositive of the issue, the Act’s parallel
treatment of the two categories of fines could be read to manifest an overall con­
gressional approach to fines and penalties.
In light of the fact that the CFEA does not explicitly include or except proba­
tion fines from application of its interest and penalty provisions, we look next to
the legislative history of the CFEA. Research reveals, however, that although it
is clear from the legislative history that a primary purpose of the statute was to
encourage the prompt and full payment of fines14 and that the interest and penalty
provisions were created to encourage timely payment,15 neither the congressional
debates nor the report accompanying the legislation provides a definitive state­
ment as to Congress’ intent with respect to this issue. There is some indication
in the legislative history that Congress recognized that an incentive for payment
of fines already existed with respect to probation fines. One could infer from that
recognition that Congress saw a need for an incentive in the case of straight fines.
We do not believe, however, that merely because Congress recognized the need
for a monetary incentive for straight fines it follows that Congress intended that
there was to be no monetary incentive for the defendant to comply with proba­
tion fines above and beyond the ever-present threat of termination of the proba­
tion and the resulting imposition of a prison sentence. Indeed, section 3651 of
the CFEA provides that the defendant’s obligation to pay a fine imposed or made
a condition o f probation is not extinguished when the court terminates the pro­
ceedings against the defendants; accordingly, there would still be a need for an
10 In contrast, the probation sections contained in the Comprehensive Crime Control Act of 1984 give the court
discretion to require the defendant to “pay a fine imposed pursuant to the provisions of subchapter C ” 18 U.S.C.
§ 3563(b)(2). Subchapter C contains the general fine provisions, the implementation o f which are governed by the
provisions o f subchapter B o f chapter 229, which contains the interest and penalty provisions. Accordingly, by spe­
cific reference, the interest and penalty provisions apply to fines imposed strictly as a condition to probation.
11 See Memorandum for Douglas W. Km iec, Deputy Assistant Attorney General, Office of Legal Counsel, from
Laurence S M cW horter, Acting Director, Executive Office for Umted States Attorneys (Apr. 9, 1987).
12 W ith respect to straight fines, the C FEA provides that the obligation to pay a fine or penalty ceases only upon
the death o f the defendant or the expiration o f twenty years after the date o f the entry of the judgment, whichever
occurs earlier. 18 U.S.C. § 3565(h)
13 The collection o f straight fines is governed by 18 U.S.C. § 3565(d)-(h). Probation fines “shall be collected in
the manner provided in section 3565 of this title ” 18 U.S.C. § 3651.
14 H.R Rep. No 906, 98th Cong., 2d Sess. I (1984). See also 130 Cong. Rec. 31,946-48 (1984) (statement of
Sen. Percy).
15 Id. at 3.
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incentive once the proceedings were terminated.16 In sum, we find no conclusive
statement in the legislative history as to Congress’ intent with respect to whether
the interest and penalty provisions apply to probation fines.
Finally, the only case law addressing the application of the interest provisions
of sections 3565(b)(2) and 3565(c)(1),(2) to probation fines holds that probation
fines are governed by these provisions. Indeed, the United States Court of Ap­
peals for the Third Circuit found that where restitution was ordered as a condi­
tion of probation, postjudgment interest was properly ordered despite the fact that
the Federal Probation Act, 18 U.S.C. § 3651, makes no reference to the payment
of interest in connection with restitution. United States v. Sleight, 808 F.2d 1012(3rd Cir. 1987). The court found a parallel between court-ordered restitution and
criminal fines, stating that “[a] judgment for restitution can be viewed as a debt
to the victim just as a judgment for a fine is considered to be a debt to the sover­
eign. Congress has provided that fines and penalties can be enforced in the same
manner as civil judgments, and that postjudgment interest must be paid on any
fine or penalty that is past due.” Id. at 1020. The court further noted that should
the defendant not be required to pay postjudgment interest, he (the defendant)
would have an economic incentive to “delay such payment until the last possi­
ble opportunity.” Id. at 1021. In finding that postjudgment interest was properly
ordered where the defendant failed to pay restitution imposed a condition of pro­
bation, the Sleight court read section 3565(c)(1) to mandate payment of post­
judgment interest on any fine or penalty that is past due, including fines imposed
as condition for probation. Id. at 1020. Thus, the court’s interpretation of the
CFEA’s interest and penalty provisions supports our conclusion that those pro­
visions apply to probation fines.17
Conclusion
We conclude that application of the interest and penalty provisions embodied
in sections 3565(b)(2) and 3565(c)(l)-(2) of the Criminal Fine Enforcement Act
of 1984 is mandatory in the case of late payment or nonpayment of all fines im­
posed in criminal cases in which judgment or sentence is rendered. Accordingly,
we find that application of the interest and penalty provisions is mandatory where
the defendant has failed to pay a fine imposed as a condition of probation pur­
suant to 18 U.S.C. § 3651.
John O . M c G in n is
Deputy Assistant Attorney General
Office o f Legal Counsel
16 In its discussion o f the problem with collecting straight fines. Congress noted that, apparently in contrast, “ [a]
defendant who fails to pay a fine that is a condition o f probation can have probation revoked.'’ H.R. Rep. No. 906,
98th Cong., 2d Sess. 3 (1984). During the debates, Senator Percy noted that ‘'the new law takes away the economic
incentive for avoiding fine payment as long as possible by providing for interest and penalties on unpaid fines."
130 Cong. Rec. 31,947 (1984). He went on to note in the same paragraph that “ [a]ll fines will be due at once, un­
less a definite payment schedule is established at the time o f sentencing." Id The Senator did not appear to m ake
a distinction between straight fines and probation fines
17 W e note that the effect o f our opinion is limited in that under 18 U.S.C. § 3651 the court “may revoke or m od­
ify any condition o f probation, o r may change the period o f probation."
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