An overview of the Federal process begins with the Mandatory Restitution Act as of April 1996 Provisions include:
- Identified victims may be entitled to an order of restitution for certain losses associated with committed offenses or losses that a defendant agrees to pay as part of a plea agreement to persons or businesses. It is incumbent upon the victim to keep a record of all expenses over time.
- Although Congress mandated restitution for several Federal crimes as of 1996, judges have the discretion to order restitution for crimes occurring earlier.
- As part of the protocol, a probation officer is assigned to the case who prepares a pre-sentencing report with recommendations for the judge
- Crime victims can formally request restitution with an accounting of their losses in a Declaration of Victim Loss Statement to be presented after a defendant has pleaded guilty or has been convicted by trial.https://www.justice.gov/usao-wdwi/case/file/1034626/download
- According to the Act, if a victim incurs additional losses, after the judgement has been filed, they can petition the court to amended the order of restitution within 60 days of discovery of the additional expenses.
Types of Restitution
- Reimbursement for verified loss of income, transportation, child care , any expenses related to the investigation or prosecution, or attendance at proceedings; necessary professional/medical services (i.e.- Physical injuries – for payment equal to the cost of Rehabilitation therapies- psychological or psychiatric care)
- Fraud- typically awarded the amount equal to the value of the loss.
- Special Circumstances Potentially Awarded Re The Full Amount of Victim’s Loss Including sexual assault cases, interstate intimate partner violence, child exploitation, telemarketing.
Typically NOT Included as part of Restitution-
- “Pain and Suffering”; Attorney’s Fees; Tax Penalties;
- In lieu of these claims, a judge may often order a return of property or money including a victim’s estate.
Reasons for Denial-
- An order of restitution does not apply to a defendant who in bankruptcy; If determining restitution is too complex;
- If the defendant is indigent and the victim consents, the judge may order restitution in the form of “performing a service” rather than paying money or to make restitution to a particular person or organization designated by the victim within their victim impact statement.
Possible Alternative Options to Restitution –
- Filing a lien called an “Abstract of Judgement” via the U. S. Clerk of Court applied to assets in the state in which the defendant was convicted;
- Filing suit in Small Claims Court to recoup losses related to the crime(with statute of limitations applied).
Is Restitution Realistic? Is it Enforceable?
- At the Federal level, the U.S. Attorney’s Office Financial Litigation Unit is charged with enforcing orders of restitution.
- “The FLU unit will pursue various means to enforce restitution, as the judgment and its resources permit, on behalf of identified victims for 20 years from the filing date of the Judgment, (plus the time period of actual incarceration) or until the death of the defendant. While a defendant is under the supervision of a probation officer, that probation officer will also monitor and ensure appropriate restitution is paid, when possible.”
Realistic ?- You tell me…
Iowa July- 2012
Iowa judges ordered arsonists, thieves, murderers and other convicted criminals to pay a combined $159 million in victim restitution over the past five years, according to data obtained by The Des Moines Register. Yet, offenders’ payments during that time totaled only $19 million, or less than 12 percent of the new debts.
State Court Administrator David Boyd said the total restitution owed to Iowa crime victims will continue to grow, because improved collections still can’t keep pace with new debts.
June 2015 Jodi Arias Trials
“PHOENIX — A Maricopa County Superior Court judge on Monday ordered convicted murderer Jodi Arias to pay more than $32,000 in restitution to the siblings of Travis Alexander, the man she killed.Arias, 34, who was sentenced to life in prison in April, did not attend the hearing.
According to Arias’ defense attorney, Jennifer Willmott, the restitution amount was about one-third of what the family requested as compensation for travel and lodging and other expenses related to Arias’ two trials.
Willmott said that she went through the receipts submitted by the family to arrive at the amounts awarded. She also requested the amount of money that the family had received in donations from trial followers to offset their expenses. They declined to reveal the amount.”
At the State Level – Connecticut as an Example –
Victim Compensation is different from financial or service related restitution. For an overview of what Victim Compensation Benefits are, refer to this helpful chart: https://www.jud.ct.gov/crimevictim/Compensation_Benefit_Chart.pdf
Regarding restitution, the Office of Victim Services states, “If the court orders the defendant to pay your financial losses and the order includes expenses that were already paid by the Victim Compensation Program, the Program is entitled by state law to receive back all of the victim compensation paid for those expenses, unless the court orders differently.” (Section 54-215 of the Connecticut General Statutes)
Note – I was informed just prior to our April 25, 2018 parole hearing that the Department of Correction Staff I consulted had NEVER experienced a judge order restitution to a felon of his murderous caliber in the staff person’s tenure of several years!
In my opinion, it matters not how little they earn in prison, whether it is $.75 cents to $1.75 per day. Such salary or a designated portion of their salary or commissary allotment should go to the victim’s family directly, a designated organization, or the Victim’s Compensation Fund.
In the foreseeable future a bit of progress will be made in the State of Connecticut regarding use of restitution, thanks to legislators’ passage on the last day of the recent 2018- legislative session.
Naysayers may say that it is merely, a “feel good bill,” record keeping bill, a reminder for the judge to ask if the victim requests restitution. This may be true, but I’m not complaining because it is a start to help improve victims’ rights.
Public Act No. 18-128 AN ACT CONCERNING VICTIM’S RIGHTS AND RESTITUTION.
SUMMARY
This bill requires the court, when sentencing an individual who was convicted of a criminal offense, to inquire on the record whether there are any requests from victims for restitution. Existing law, unchanged by the bill, requires the court to order an offender to make financial restitution, under terms that it determines are appropriate, if the:
- individual was convicted of an offense that resulted in injury to another person or property damage or loss;
- victim requests financial restitution; and
- court finds that the victim suffered injury or property damage or loss as a result of the offense.
Under current law, any such restitution must be imposed or directed by a written court order. The bill explicitly requires that the order be written on a form the chief court administrator prescribes. It also (1) requires the court to retain each original form containing a written restitution order as part of the offender’s court file and (2) makes a conforming change.
EFFECTIVE DATE: October 1, 2018
References-
https://www.justice.gov/usao-ndga/victim-witness-assistance/understanding-restitution;
https://www.jud.ct.gov/crimevictim/compensation.htm
If you need assistance with writing a professional Victim Impact Statement, please refer to the Victim Impact Statement FAQ’s on this site.
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Donna R. Gore 