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Alliance: Factsheets: Restitution Legislation


Factsheets: Restitution Legislation

Overview

The practice of requiring an individual who has harmed another to repay the victim for the harm caused has been at the heart of jurisprudence in the civilized world. In fact, throughout most of history, the concept of repayment or restitution was inseparable from principles of crime and punishment. But as the power of the state grew, and as the interest of monarchs to intervene in an effort to quell violent settlement of disputes also grew crimes against individuals became "crimes against the state."

Instead of focusing on repaying victims for the harm inflicted, burgeoning criminal justice systems became more interested in punishing offenders for their criminal acts. This separation of public and private sanctions against criminals gave rise to the criminal and civil systems America has today. The public sanctions and private claims for restitution were never fully divorced, although they fell into disuse during the late 1800s and early 1900s. While courts always retained the power to order repayment to victims, it was only during the 30s and 40s that restitution enjoyed a resurgence. Restitution's recent rise and resurrection is due, at least in part, to the growing "victims' rights movement," which has been accompanied by the public demand for offender accountability. The movement has actively advocated for greater use of restitution by educating judges and prosecutors concerning the victim's interest in restitution and by assisting in the passage of restitution-related legislation. (All statutes discussed in this summary are current through 1992 unless otherwise indicated. Source: National Center for Victims of Crime, Legislative Database.)

Statutory Rights to Restitution

While victims have always had a common law right to restitution for criminal harm inflicted, virtually all states have, at this point, adopted laws that codify those rights in some form. A vast majority of states allow courts to make payment of restitution a condition of probation and/or parole. Most importantly for victims, at least 23 states have passed laws requiring that restitution be ordered in all cases or that the court state on the record its reason for failing to do so (Beatty, 1991). In almost half of the 29 states that have passed a constitutional amendment for victims' rights, language which mandates restitution is included in the amendment. As part of their broad-ranging authority over the issue of sentencing, courts have had a great deal of discretion concerning matters of restitution, despite statutory mandates and guidelines.

Victim Eligibility

Unlike victim compensation, the offender in a particular case must be caught and convicted before restitution can be ordered. While statutes vary as to the exact definition of who is eligible to make a claim, virtually all jurisdictions allow direct victims of crime to benefit from restitution. A New York case defined an eligible victim as "an aggrieved party whose rights, person or property were invaded by the defendant as a result of which criminal proceedings were successfully concluded" (People v. Grago, 24 Misc.2d 739, 741, 204 N.Y.S.2d 774 [1960]). The federal definition is more broad. It includes "any victim of the offense." In most states, family members are allowed to recover for losses incurred by the victim of homicide, including medical and funeral expenses.

In some states, they may even be allowed to recover losses they have indirectly suffered due to the crime. Some states allow parties (i.e., insurers and even state compensation programs) who have already compensated victims for their losses to receive restitution payments that would otherwise be paid to the victim (i.e., through subrogation). Ordinarily, before restitution can be ordered, there must be a finding of guilt, either by plea or conviction. One clear exception to this rule is in cases involving pre-trial diversion. The court may order restitution as a condition of pre-trial diversion despite the absence of any true finding of guilt or conviction. In a growing trend, juvenile offenders are being ordered to pay restitution to their victims, although a maximum amount which can be imposed may be established by statute. (States in which victims of juvenile crime may receive restitution include: AZ, CA, CO, HI, IN, IA, MD, MN, MO, NE, NM, NC, OR, TN, TX, WA and WI.) In some cases, the parent or legal guardian of a juvenile offender is also liable for the satisfaction of the restitution order.

Stages in Proceedings Where Restitution May Be Ordered

Restitution can be ordered at several points during the criminal justice process. It can be ordered as part of pre-trial diversion, suspended sentence or sentencing after conviction, or entry of a guilty plea. It can also be ordered in addition to a prison term or as a condition of probation or parole.

Types of Losses Which May Be Ordered in Restitution

The types of losses for which victims may obtain restitution vary from jurisdiction to jurisdiction. Almost all states allow recovery of the victim's actual, or out-of-pocket, costs such as medical expenses which may include mental health counseling, psychiatric care, physical therapy, orthopedic appliances/devices and HIV tests and property damage or loss. Some state statutes do not go far beyond these basic items.

Other states are far more expansive in their definitions of allowable costs. North Carolina, for example, allows restitution for all damages or losses a victim could ordinarily recover in a civil action. Some courts have also allowed compensation to victims for their time in lost wages, inconvenience, and other "damages." (As of 1992, more than 22 states specifically permit restitution for lost wages or loss of earning power: AL, AZ, CA, CO, DE, FL, ID, IL, IN, KY, ME, MD, MA, MI, MN, NE, NH, NM, UT, WA and WI.) Apart from general medical costs, family members of homicide victims are allowed to receive orders for "general damages" or for loss of support. The types of losses which may be recovered may also depend on the victim population involved. California, Colorado and Illinois have enacted special restitution provisions for elderly or disabled victims of crime which address property loss suffered by such victims. A number of states specifically cover the cost of counseling for certain victim populations, including:

Consideration Concerning Size and Schedule of Payments Determination of Restitution Amount

As a general rule, courts are required to specify the amount, payment schedules and other conditions of restitution as part of the sentence, pre-trial diversion or probation order. Orders that do not include such specific provisions have been struck down as "too vague" or as unauthorized delegations of authority to probation or corrections officials. There is some contention over the question of what criteria are appropriate in determining the amount to be ordered in restitution. Many courts treat the determination of the "total amount of damage caused" as a separate issue from the "total amount of restitution to be ordered." In such cases, the court may determine the offender's criminal act caused $1 million in damages, but due to his or her lack of personal resources, he or she will be ordered to pay only $10,000. Other courts focus solely on the issue of the offender's ability to pay and, thus, never make an independent determination of the actual damage caused. In Arizona, a court shall not consider the economic circumstances of the offender in setting the restitution amount, but may when determining the payment schedule.

Defendant's Ability to Pay

In almost all jurisdictions, the court is only able to order restitution when it is "reasonable" or "appropriate" after considering the defendant's ability to pay. But once again, judges are given wide latitude in determining what is "reasonable" given the defendant's financial means. The court may require him or her to make financial sacrifices or even to temporarily change his or her lifestyle or standard of living, if necessary, to make restitution payments. The government agency responsible for monitoring, collecting and distributing restitution differs depending on the jurisdiction. A considerable number of states charges the courts usually the clerk of court with the responsibility of supervising restitution orders. When restitution is ordered as a condition of probation, the duty for oversight usually falls to the probation department or, in some cases, the prosecutor's office. When the offender has been ordered to pay restitution in conjunction with a prison sentence, the state department of corrections serves as the administrator of the program. Similar collection systems operate within state paroling authorities for parolees.

Non-Payment of Restitution

In most cases, once restitution has been ordered, the offender is expected to begin making payments immediately to meet with the schedule ordered by the court. If the defendant fails to make a scheduled payment, the responses available to the administering criminal justice agency may be either informal or formal. In some states, probation officials are granted the power to temporarily incarcerate offenders for non-payment, and then to re-release them after issuing a warning or reprimand.

Probation Revocation

If probationers fail to make their restitution payments, they may have their probation revoked. In virtually every case, revocation requires a formal proceeding. Some state statutes mandate that such proceedings be initiated by the prosecutor. Others place the duty on the agency responsible for supervision. Still others grant the victim the right to request a hearing on the issue of non-payment. Many court cases have upheld the constitutionality of imprisoning offenders for failure to pay restitution. However, the U.S. Supreme Court addressed the issue in Beardon v. Georgia, 461 U.S. 60 (1983), and ruled that revocation would not be allowed without showing that the offender's default was intentional, or that the offender had not made a good faith effort to obtain the means for repayment (i.e., seeking employment, borrowing funds, selling assets, etc.).

The Supreme Court determined that if the probationer made a good faith effort to pay his order and still lacked the means to meet his or her restitution obligations, it would be fundamentally unfair and unjust to imprison the offender and as such, would violate his or her rights under the Fourteenth Amendment. While some agencies or courts may conduct independent investigations to determine the issue of the offender's "ability to pay," generally the burden of proving inability to pay rests with the offender. In some jurisdictions, probation is viewed as a suspended sentence. In such cases, revocation is a reinstatement of the original sentence. In jurisdictions where probation constitutes the entire sentence, revocation has the effect of imposing a new sentence.

Court's Authority to Amend or Revoke Restitution

In cases where offenders have proven an "inability to pay," or shown that the order is unreasonable or unduly burdensome on them or their family members, the court has the power to adjust the restitution order in several ways, including:

Court-Ordered Enforcement

Statutes have granted courts a variety of means to enforce restitution orders beyond revocation of probation or parole. Several jurisdictions have allowed courts to garnish the wages of offenders. For example, California and Florida mandate the entry of an income deduction order when restitution is ordered. In Texas, sentencing judges can require offenders to send letters to employers, authorizing payment of a portion of their salaries directly to the victims by way of restitution. Some states have statutes authorizing the attachment of offenders' assents (i.e., bank accounts, holdings, financial instruments, etc.) and allowing for execution (seizure) against such assets. Some have required offenders to disclose the nature and location of such assets, or to post a cash bond to insure payment of restitution. A California law makes it a misdemeanor and in some instances, a felony for a convicted offender to sell or conceal property in order to reduce his or her financial ability to pay restitution. An innovative program implemented by the Washington State Department of Corrections is an "automated billing system," which mails offenders a monthly bill similar to those sent by credit card companies with a return envelope.

Extension of Probation or Parole Supervision as Sanction

Another enforcement tool available to judges is the power to actually extend probationary or parole supervision for offenders who fail to comply with restitution orders. In a few states, there is no limit to the amount of additional time the court may impose to assure the satisfaction of restitution orders. In general, however, states have limited such extensions to the maximum probationary period allowed by law, or to a specified number of years usually two or three beyond the original sentence or term of probation or parole.

Civil Enforcement of Restitution Orders

In many jurisdictions, restitution orders are enforceable by the same means as civil judgments, although in some states such enforcement only becomes available when the offender defaults in making the restitution payments ordered. Restitution orders may substantially assist victims in proving and winning civil suits, but many victims will still be required to obtain civil judgments in order to avail themselves of civil enforcement mechanisms (i.e., attachment, garnishment, property liens, etc.). A growing number of jurisdictions has granted their courts the power to enter restitution orders that provide victims with virtually the same rights they would have, had they obtained a civil judgment against the offender. The Federal Victim and Witness Protection Act of 1982 includes a provision which specifically states that a restitution order "may be enforced as though it were a civil judgment rendered by a United States District Court." Even in some courts which lack such statutory authority, judges have, nonetheless, ordered criminal defendants to consent to civil judgments for damages to be paid to victims as a condition of probation and/or parole. More and more states are passing laws which automatically convert restitution orders to civil judgments.

References

Beatty, David. (1991). "Legal Issues." In American Parole and Probation Association and the Council of State Government, Participant Manual: Offender Supervision and Restitution Project. Lexington, KY.

Bibliography

Administrative Office for the U.S. Courts. (1992). Bringing Criminal Debt into Balance: Improving Fine & Restitution Collection. Washington, DC.

Bureau of Justice Assistance. (198). Restitution by Juveniles: Information and Operating Guide for Restitution Programs. Washington, DC: U.S. Department of Justice.

Butts, Jeffrey and Howard Snyder. (1992). Restitution and Juvenile Recidivism. Washington, DC: Office of Juvenile Justice and Delinquency Prevention, U.S. Department of Justice.

Frank, Linda. (1992). "The Collection of Restitution: An Often Overlooked Service to Crime Victims." 8 St. John's J. of Legal Commentary 107.

Harland, Alan. (1982). "Monetary Remedies for the Victims of Crime: Assessing the Role of the Criminal Court." 30 UCLA L. Rev. 52.

Mark, B., (1987). "The Scope of Criminal Restitution: Awarding Unliquidated Damages in Sentencing Hearings." 17 Capital U.L. Rev. 55.

McGillis, Daniel. (1986). Crime Victim Restitution: An Analysis of Approaches. Washington, DC: National Institute of Justice, U.S. Department of Justice.

National Center for Victims of Crime (1997) [1] "Civil Legal Remedies for Victims of Violent Crime," FYI, Arlington, VA.

National Center for Victims of Crime (1995) [2] "Constitutional Rights for Crime Victims," FYI, Arlington, VA.

National Center for Victims of Crime (1996) [3] "State Compensation Laws," FYI, Arlington, VA.

Rider, Nancy and Franklin Shippen. (1992). Prosecutor's Guide to Criminal Fines and Restitution. Washington, DC: Executive Office for U.S. Attorneys, U.S. Department of Justice.

Smith, Barbara, Robert Davis, and Susan Hillenbrand. (1989). Improving Enforcement of Court-Ordered Restitution, Executive Summary: A Study of the American Bar Association, Criminal Justice Section, Victim Witness Project. Chicago, IL: The American Bar Association.

Stark, James and Howard W. Goldstein. (1985). The Rights of Crime Victims. New York: Bantam Books.

Upson, Lisa. (1987). "Criminal Restitution as Limited Opportunity." 12 New England J. of Crim. L. and Confinement 243.

For additional information, please contact:

American Probation and Parole Association
c/o The Council of State Government
P.O. Box 11910
Lexington, KY 40578-1910
(606) 244 - 8000

American Prosecutors Research Institute
National District Attorneys Association
99 Canal Center Plaza Suite 510
Alexandria, VA 22314
(703) 549 - 4253

Your state Attorney General, county/city prosecutor, county probation/parole office or your local law library:
Check in the Blue Pages of your local phone book under the appropriate section heading of either "Local Governments," "County Governments," or "State Government."

All rights reserved.

Copyright © 1996 by the National Center for Victims of Crime.  This information may be freely distributed, provided that it is distributed free of charge, in its entirety and includes this copyright notice.



[1]: http://www.nycagainstrape.org/gethelp/civiljustice/
[2]: http://www.nycagainstrape.org/gethelp/constitutionalrights/
[3]: http://www.nycagainstrape.org/gethelp/statecompensation/

Copyright © 2000-2007 by The New York City Alliance Against Sexual Assault

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