I am sure that in the rarefied atmosphere federal judges call home, gargantuan restitution orders look fair, just and reasonable. After all, what can be more just than requiring a defendant to pay back what he has stolen? The problem is the law's unreasoning way of calculating loss amounts.

Consider the not-at-all-uncommon problem of co-conspirators.

The law on conspiracy is devilishly simply. If two or more people agree to undertake some unlawful end, and any one of them then goes out and commits what the law calls an "overt act" in furtherance of the conspiracy, it's as if all the conspirators committed the crime. In a large conspiracy, the co-conspirators may not even know one another: All that unites strangers is common dedication to unlawful ends.

The problem of strangers as co-conspirators is particularly evident in drug prosecutions. Lawyers struggle to explain to their clients how they are joined at the hip to people their clients never even met.

It's also a problem, albeit a lesser problem, in mortgage fraud cases, where individuals usually at least know the other co-conspirators. The problem in these white-collar cases is that defendants have differing levels of involvement in the enterprise. As in any group, there are leaders and followers; some folks just turn a blind eye to fraud and go along for the ride, hoping for modest gains.

Once prosecuted, defendants learn quickly enough that the law's iron net hauls in all those involved. Typically, defendants enter guilty pleas. The unwary, or the stubborn, go to trial, where they are most often convicted.

At sentencing, these defendants are often in for a shock: enter, stage left, our old friend from civil law—joint and several liability. This doctrine requires that each participant in a wrong share jointly liability for the harm the group caused. The party with the most assets, whether those assets come from the illegal activity or not, typically pays most of the judgment. Federal judges don't think twice about imposing joint and several restitution orders on criminal co-defendants.

It can work enormous injustices.

Consider the following case: A defendant is a minor participant in a conspiracy. He nets perhaps $20,000 from his participation in the fraud scheme. However, the much larger conspiracy of which he is a part yields losses of, let's say, $1 million to some bank or other.

At sentencing, the man is likely to face a restitution order of $1 million, despite his gain of only $20,000. If he has assets not derived from the conspiracy, and his co-defendants are broke, his restitution order will be transformed, by operation of law, into a civil judgment. Prosecutors will be looking to take $1 million from the flush defendant to make the victim whole.

That's because co-conspirators are jointly and severally liable.

There's something insidious about the logic here, airtight though it is. The flush defendant is suddenly thunderstruck by prosecutors determined to seize from him funds far in excess of any gain he received from the conspiracy.

Savvy criminal practitioners argue that clients should be protected from what amounts to rogue restitution orders of this sort. Most judges are sensitive to the inequities of such orders, and criminal judgments often reflect the reality of a defendant's diminished fisc. Few convicted of a federal offense see their earning capacity increase once they become felons.

But prudent though a criminal judgment may be, the Justice Department is imprudent as a collection agency. Restitution orders are treated as civil judgments. A defendant with nominal gains from a conspiracy can have assets seized to pay for the crimes of his impecunious co-defendants.

No one bleeds too much over the fate of convicted felons. But we ought to be troubled by restitution orders that are unjust and inequitable. Not all losses can be recouped. When recovery imposes unreasonable and unjust burdens on those struggling to rebuild after a felony conviction, the courts look less like tribunals of justice and more like vicious collection agencies.