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Abstract: This chapter will provide the participant with information about the history of restitution, its purpose, operation, and the rehabilitative aspects of restitution as it exists within the United States. Participants will receive information regarding the importance of acquiring restitution for victims who have suffered financial losses as a result of crime. Participants will also be informed of how restitution can be used to hold each offender accountable while affording the maximum opportunity for rehabilitation.
Learning Objectives: Upon completion of this chapter, students will understand the following concepts:
1.The historical basis for restitution in administering justice.
2.The extent of financial losses to victims of crime.
3.Correctional and rehabilitative goals of restitution.
4.Obstacles to implementing restitution.
Statistical Overview
While many may associate the physical and psychological impact of crime as the most obvious and serious tolls taken by any crime, the financial impact of crime can be devastating. Considerable losses can be incurred by such things as unforeseen medical expenses, psychological counseling costs and the need to replace stolen property. The financial losses incurred as a result of crime can be as debilitating as any other type of injury suffered by crime victims:
Historical Perspective
The concept that any offender should make restitution to another individual as part of the consequences for committing a criminal act can be traced back to the earliest forms of laws governing society. Most people are familiar with the clause "an eye for an eye", which dates back to the Code of Hammurabi in the eighteenth century B.C. ( trans. 1904). The Hebrew Law of Moses (about 1688 B.C.) specifically provided for the payment of restitution, as can be seen in this example from the Old Testament:
"If a man shall steal an ox, or a sheep, and kill it, or sell it he shall restore five oxen for an ox, and four sheep for a sheep. If a man be found breaking up, and he be smitten that he die, there shall no blood be shed for him; If the sun be risen upon him, there shall no blood be shed for him; for he shall make full restitution; if he have nothing, then he shall be sold for his thieft.If the theft be found in his hand alive, whether it be ox, or ass, or sheep; he shall restore it double."
Restitution as described within this Biblical framework functioned as both a form of restitution and punishment. The idea of restitution was prevalent throughout primitive societies. In Saxon England, a legal system developed which delineated between the restitution owed to the victim's family (called the Bot), and that owed to the king for violating the king's peace (called the Wit) (Frank, 1992). Eventually, Anglo-Saxon law established the concept of the "botless" crime, and crimes were punished solely on the basis of being violations of the king's peace. Thus, the victim took on a secondary role and was left without remedies within the criminal system; the only recourse was to pursue damages in a separate civil action.
With the development of the Western legal system, the state continued in its primary role by taking on responsibility for prosecuting crimes, which were viewed as crimes against the state - not against the victim. Restitution became less important as the state pursued punitive justice. While recognition of restitution's importance continued to receive attention in discussions of international prison issues in the 1700s and 1800s, the focus on monetary relief for victims began to turn toward civil remedies as an alternative to criminal justice involvement (Schafer, 1970).
The emergence of modern restitution can be traced to the establishment of penal laws which permitted suspended sentences and probation. By the late 1930s, the courts in at least eleven states were specifically empowered to order restitution, within their discretion, as a condition of probation (Frank, 1992, p. 111). It was not until the late twentieth century that restitution found new prominence, not as a correctional objective, but as a critical element in the burgeoning victims' rights movement. Protecting victims from suffering financially (in addition to psychologically and physically) from the impact of crime resulted in renewed interest in restitution.
The federal government provided leadership on this issue through the publication of the Final Report of the President's Task Force on Victims of Crime in 1982 as well as the enactment of the Victim and Witness Protection Act of 1982 (VWPA). Referring to the VWPA, the message expressed by the late Senator John Heinz on the Senate floor was that restitution should be "the expected norm, no longer an afterthought." Senator Laxalt concurred: "It is the intent of Congress that judges order restitution in each and every case where the court finds there has been property loss or injury to the victims." In the decade that followed, virtually every state passed some form of restitution statute, most following the federal model.
The American Bar Association followed in 1988 with the issuance of Guidelines Governing Restitution to Victims of Criminal Conduct. During the 1980s, organizations with widely differing goals expressed support for utilization of restitution. Some of these include: the American Civil Liberties Union, the National District Attorney's Association, the U.N. General Assembly, and the President's Commission on Law Enforcement and Administration of Justice.
While all states have some type of restitution statute, some have taken the step of actually mandating restitution. Because there are numerous ways to structure and define mandatory measures within legislation, it is difficult to precisely quantify how many states actually require restitution. Some states mandate restitution with respect to violent crimes, while others do so with respect to property crimes. Still other states may require restitution for juvenile offenders, and also may require that the offender be on probation during the period of probation. As of 1993, at least twenty-nine (29) states had enacted statutes requiring restitution at sentencing for most violent crimes. Some states mandate restitution or, in the alternative, require the sentencing judge to state on the record his/her reasons for not ordering restitution.
In recent years, jurisdictions around the country have focused increasing attention upon their systems for managing restitution. Some of the national trends regarding restitution programs are described in Crime Victim Restitution: An Analysis of Approaches, a comprehensive review of restitution programs published by the National Institute of Justice in 1986 (McGillis). The clear majority of restitution programs are located within the probation and parole divisions of corrections departments, but there are many prosecutor-based restitution programs as well, usually located within the victim-witness division.
Increasingly, states are creating and amending legislation pertaining to specific procedures in the restitution process. Moreover, many states are pursuing increased victims' rights through the passage of victims' bill of rights constitutional amendments. On the federal level, restitution reform became law in 1995. The Victims' Justice Act of 1995 amends the federal criminal code to require judges to order restitution for victims of the following crimes of violence: property crimes, fraud, consumer product tampering, and drug crimes. In addition, procedures for issuing and enforcing restitution orders were significantly expanded under the Act. Full implementation of these new provisions will bring new importance to restitution in federal criminal proceedings. Also, Senate Joint Resolution 52, proposing an amendment to the United States Constitution, was introduced on April 22, 1996 and referred to the Senate and House Judiciary Committees. The joint resolution contains language calling for "full restitution for the convicted offender" and is expected to be voted upon sometime in the next Congressional session.
Restitution Philosophy
Restitution is an important tool in criminal justice. With increasing emphasis on community-based sentencing alternatives, restitution is likely to increase in importance. With this in mind it is critical -- for victims and for justice -- that effective models be developed to enable the numerous professionals involved to carry out their responsibilities more effectively.
The idea of restitution has re-emerged in modern day criminal justice practices and serves many different purposes in the administration of justice. Restitution attempts to establish a relationship between the offender and the victim in an effort to raise the offender's sense of responsibility to the victim and to society. The relationship is generally facilitated through the criminal and juvenile justice processes. The idea of restitution also attempts to advance a sense of personal accountability to the victim. Restitution can impress upon the offender some measure of the impact of the crime through the association of financial costs with the loss experienced by the victim. Some jurisdictions utilize mediation programs which bring the offender and victim together in a face-to-face meeting to negotiate a restitution settlement. While the victim must consent to such a meeting, this approach attempts to address the economic as well as psychological injuries in such a way that the offender may be able to comprehend the full impact the crime has had upon the victim.
In reviewing the current literature regarding restitution, a continuous theme emerges espousing that while restitution cannot undo the harm it has done, it can assuage the injury, and it has a genuine educational value for the offender, whether adult or child. The importance of restitution as a criminal justice practice and as a right of crime victims is its ability to make efforts to repair damages suffered by the victim while also serving to rehabilitate the offender, and further the goals of justice. Restitution can be implemented in a number of ways at various points throughout the criminal justice system process (more fully described below). Although restitution is most often imposed in a mandatory fashion, it may be entered into voluntarily by the offender as well.
Restitution to the victim of a criminal injury can be effective as a punitive measure as well as a financial remedy. It must come from the offender's own resources (either money or service) and it must be part of the criminal court sentence by being tied to case disposition. Restitution can potentially go well beyond compensation by requiring the offender to restore the victim to his or her pre-injury condition, to the fullest extent possible. It compensates the victim, relieves the state of some burden of responsibility for the victim's injuries, and permits the offender to pay his debt to society and to his or her victim. Thus, it makes a contribution to the reformative and corrective goals of criminal law and is an important facet of the criminal justice system.
The renewed interest in restitution has launched a great deal of discussion concerning how management of restitution may be made more effective. An American Bar Association (ABA) study which involved an in-depth survey of program directors in 75 sites as well as intensive on-site personal interviews of restitution personnel at four (4) sites produced some interesting conclusions indicating the need for further study. Some of these include: (1) close program monitoring of offender, beginning as soon as a restitution order is entered, can increase compliance; (2) offenders whose profiles indicate a higher risk for non-payment should received increased attention; (3) greater program efforts can greatly increase victim satisfaction with the restitution process; and (4) an increase in funding for restitution programs is needed, particularly with respect to technology development and implementation (Smith, Davis, and Hillenbrand, 1989).
Obstacles to Restitution
Restitution is a highly complex process, involving numerous professionals and a diverse array of tasks. Moreover, there are inherent difficulties in requiring financial reparation from offenders who are predominantly in difficult financial and/or personal circumstances. This is not to condone failures to pay restitution -- simply to acknowledge the realities. However, contrary to what many professionals have claimed, the "myth of collectibility", referring to the "mistaken notion" that restitution can actually be collected, may itself be a myth of its own making. Jurisdictions all over the country are currently experimenting with and institutionalizing procedures to organize and streamline restitution procedures.
This very definite progress notwithstanding, there is general acceptance that "restitution remains, as it has been for the past century, underutilized in actual case dispositions." (Roberts, 1990) The "underutilization" is apparent both in decisions to order restitution and in efforts to collect amounts ordered for payment to victims.
In a recent (February 1992) report on Recidivism of Felons on Probation, 1986-89, the Bureau of Justice Statistics reported the results of a two-phase survey of selected counties. Of the 32 counties surveyed, "only half of the counties required restitution in at least one-third of all felony probation cases." A study of a follow-up sample revealed that the average restitution order imposed was $3,368 per probationer. For felony probationers who had completed their sentences, only 54% of the amount of restitution ordered was paid.
Recent research has also investigated aspects of effectiveness of various restitution programs, including victim satisfaction. A study funded by the State Justice Institute (1989) found that victims who were not satisfied with their involvement cited lack of input into the decision about amount imposed and a lack of ongoing information about the process. Hudson and Galway (1980) earlier found that more than half of the victims surveyed (51%) indicated dissatisfaction with restitution, mostly because they felt the amount imposed was insufficient. Despite this, most victims (61%) said that "monetary restitution was the fairest form of punishment." The ABA study found that victims expressed the most satisfaction with the process when they felt there was communication between them and some member of the criminal justice system who served as their contact, most typically a member of the victim-witness office.
Much of the disparity between the perceived value of restitution and actual effectiveness of restitution practices may be traced to very cumbersome procedures involving several agencies and personnel, many of whom may not be communicating clearly and effectively. Since restitution necessarily requires the involvement of numerous personnel and agencies, it is often poorly managed. The attempt to manage a complex process such as restitution without clearly defined roles and streamlining of tasks has led to many problems, of which the most frequently cited are the following:
Critics and detractors of the concept of restitution point to several reasons why the concept cannot be successfully implemented. In that regard, in working with crime victims, certain realistic factors must be understood and explained. For example, only a minority of offenders are apprehended and convicted. The late Senator John Heinz pointed out that "since less than 20% of all crimes lead to an arrest, less than 10% of the accused are ever prosecuted, and less than 3% of those arrested are actually convicted, 97% of all victims would go unaided if restitution were their only means of assistance or retribution" (Harland and Rosen, 1990). Senator Heinz was a strong supporter of victims' rights and advocated fair treatment of victims and witnesses throughout all stages of a criminal proceeding, as one way to encourage their involvement in the criminal justice system, thus increasing the likelihood of bringing offenders to justice.
As mentioned above, another potential problem with restitution is the socioeconomic status of many offenders. In a majority of cases, offenders are in extremely dire financial straits and are unlikely to earn the funds necessary to make full restitution. Moreover, juvenile offenders are also often incapable of obtaining jobs that might help them fulfill obligations.
The experience in some jurisdictions, however, has shown that these obstacles can be alleviated and in some cases, overcome. The ABA study, although mainly generating hypotheses for further study, did document correlations between the amount of restitution collected and certain other factors, such as: (1) amount of restitution ordered; (2) consideration of the offender's ability to pay; and (3) amount of follow-up actions taken in the event of default. The Earn-It Program, first created in Quincy, Massachusetts, is a restitution/employment program that places offenders who are ordered to pay restitution with local businesses who have agreed to participate. The offenders are paid minimum wage and are allowed to keep one-third of their earning, while the remaining two-thirds go to the victim(s) (McGillis, 1986). This program has been duplicated in many jurisdictions around the country. In the case of juveniles, community service has proven to be an effective means of imposing meaningful restitution.
Types of Restitution
Financial Restitution: Financial restitution refers to payment of money by the offender to the actual victim of the crime. This is probably the most common definition and actual use of restitution.
Financial-Community Restitution: Monetary-community restitution involves the payment of money by the offender to some other entity, such as a community program. Examples of this type of restitution include such mechanisms as Restitution Centers or court orders for payment to specifically designated charities.
Individual Service: Individual service by the offender requires that offenders perform a service for the actual victim. Examples of this type of restitution program might include the offender actually repairing some damage done to the victim's personal property through work or the completion of other specified services. This type of restitution usually involves some form of third-party mediation and obviously must be a remedy with which the victim is comfortable.
Community Service: Community service requires the offender to perform some beneficial community service. Conditions of probation often require that the probationer provide some specified number of hours and days of service to society at large. In this type of restitution, society serves as a "symbolic victim" and the practice is often referred to as "symbolic restitution."
Restitution Fines: Several states have enacted statutes that establish the authority of courts to impose restitution fines either as a condition of probation or in conjunction with sentences to prison. Restitution fines differ from actual restitution in that they are imposed and collected for the purpose of depositing funds into the state crime victims compensation fund. Once deposited in the compensation fund, the monies are then used to reimburse victims for out-of-pocket losses suffered as the result of having been a victim of a crime. All compensation programs cover the same types of expenses, but the specific monetary limits imposed may vary. Types of compensable expenses include: loss of support for dependents of the victim; mental health counseling; lost wages; and funeral expenses. It is important to note that many expenses covered by victim compensation funds are not typically recoverable in an order of restitution.
Pre-Trial
Restitution is frequently imposed in the earliest phases of the criminal and juvenile justice processes. Often times, restitution may be ordered in juvenile cases and some adult cases as a condition of an agreement reached through a pretrial agreement or plea bargain. This can be as a result of an agreement between the offender and the victim in conjunction with a police diversionary program or other formalized pre-trial diversionary program. In some jurisdictions, offenders may reach an agreement with the prosecutor pursuant to which they agree to pay an increased amount of restitution and/or restitution with respect to counts which may not have been contained in the original indictment. These agreements are typically in exchange for a decrease in number or change in nature of the criminal charges entered. Whatever the type or nature of agreement, the intent and purpose are generally to resolve the matter to the satisfaction of the victim at the earliest stages.
Restitution as a Term of Probation
The imposition of restitution as a term of probation is the most frequently used method of imposing and collecting restitution. Criminal and juvenile court judges regularly order restitution as a condition of sentencing. The corrections agency most often responsible for administering an offender restitution program is the probation department, since this entity deals most directly with offenders who are not incarcerated.
Restitution is usually ordered as a term of probation. When this occurs, the probation officer has the responsibility of monitoring monthly payments, and evaluating the rehabilitative progress of the program. In most cases where a restitution order is entered, a payment schedule is established indicating the amount of monthly payments and the length of time necessary to pay the amount in full. The probation department typically has responsibility for the monitoring and enforcement of restitution payments; however, these duties are in addition to all other monitoring duties with respect to offenders on probation. The monitoring of restitution payments may not be perceived as highly significant in the hierarchy of probation officers' responsibilities. Moreover, some probation officers have expressed a sense of conflict regarding their "supportive" role to the offender as it relates to their obligation to enforce the collection of restitution. Some jurisdictions have handled this potential problem by setting up a system whereby certain probation officers handle nothing but restitution cases.
Although the probation department may be responsible for the actual receipt of restitution payments; quite often these payments are made to the clerk of court. When such is the case, it is important to have effective procedures for keeping all relevant parties timely informed of the status of restitution payments.
In preparation for the sentencing phase, the amount and terms of restitution need to be carefully and specifically determined. All factors pertinent to the payment plan must be addressed. In the event of multiple offenders and/or victims, these additional factors must be expressly set forth. Losses which are typically addressed in a restitution order include such direct compensable losses as: medical expenses; hospital and doctor bills; lost wages; property repair or replacement; and deductible amounts for insurance coverage. Jurisdictions vary as to the extent to which, if at all, third parties such as insurance companies, victims' compensation funds or workers' compensation programs may be directly compensated for payments to victims.
Assessment of the loss is a complex process and can take place in a variety of ways. In some jurisdictions, the prosecutor negotiates directly with defense counsel, after substantiating all losses with the victim. In other cases, assessment of the loss may be made solely by the probation officer as part of the pre-trial sentencing investigation. However the process occurs, the victim is generally required to present receipts or other evidence that substantiates the actual losses experienced. In cases involving medical expenses, psychological counseling or repairs, the presentation of actual bills or other documentation is necessary. It is important to note that victims are not entitled to orders of payment for pain and suffering as any form of restitution.
Correctional Restitution
Correctional restitution is generally considered to be restitution ordered as a condition of an individual's commitment or sentence to prison or detention facility. Increasingly, prisoners are required to participate in some type of work program while incarcerated. While working in prison, inmates often receive minimal amounts of pay which they can then use to purchase various personal items. Several states (such as California) have passed statutes or implemented policies that require that a portion of all wages earned by inmate, no matter how minimal, be set aside for payment of restitution to the victim or to the state. Other states provide opportunities for businesses to establish industries within prison. These statutes or policies also require that inmates pay a portion of their wages earned toward restitution to the victim or the state.
Parole
Increasingly, states are implementing statutes or policies that provide for restitution to be established as a term or condition of parole. Mechanisms that have been established for the monitoring and collection of restitution pursuant to an offender's release on parole are essentially similar in nature to those utilized in the context of probation. Imposing restitution as a term of parole, however, is more problematic due to the length of time that expires in between the time of the crime and the release of the offender on parole. In some cases, judicial sentences regarding restitution never make it to parole board files for review and enforcement. In addition, it is often difficult to locate victims when a long period of time has elapsed after the court case is completed.
In spite of these difficulties many correctional and parole agencies are aggressively pursuing the collection of restitution as a systematic part of correctional practice. Many jurisdiction require the inclusion of the original Victim Impact Statement with the offender's file at the time of parole. In some cases, victims are given the opportunity to testify at parole hearings, allowing them to speak about consequences of the crime which may not have been present or apparent at the time of sentencing.
Civil Restitution
Many states have established statutes that provide that any order of restitution in a criminal case shall also stand as a civil order for remuneration from the defendant to the victim. In some instances, an order of restitution can simultaneously and automatically be docketed as a civil judgment, or the order may be recorded as a lien on the offender's real property. The civil court process also allows victims the right to seek financial reimbursement for pain and suffering caused by the offense, in addition to the direct out-of-pocket expenses.
It is extremely important that victims be made aware of their jurisdiction's options with regard to civil recovery. While procedural advancements may exist with respect to the imposition of civil liability, these tools cannot be accessed without educating victims as to the means at their disposal.
During the past two decades, restitution has re-emerged within the juvenile and criminal justice systems as a viable method of recovering losses experienced by victims. Victim advocates have embraced this right on behalf of victims and continue to advance the concept through statute and policy. Victim input in criminal corrections and offender rehabilitation is also vitally important. Offender restitution is a popular idea in modern correctional thinking and it exists in varying degrees in most states. Increasingly, state laws are mandating that restitution be ordered under particular circumstances. Currently, a great deal of attention is being focused on the management of restitution and ways in which restitution systems can be improved. Prosecutors and victim advocates have a responsibility to advise victims of the existence of restitution as a right, and to advocate for the imposition of this sanction when appropriate. It is also important for criminal justice system officials and victim advocates to educate themselves and the public as to the appropriateness of the imposition of restitution at virtually every stage of a criminal justice proceeding. Studies have shown and continue to show that obstacles to successful restitution management can be overcome. Effective assessment, ordering, monitoring and enforcement of restitution is highly dependent upon a given jurisdiction's approach to the complexity of coordinating the multiple tasks and personnel inherent in the process of restitution.
Self Examination Chapter 21, Section 10 - Restitution
1)Identify the earliest use of restitution.
2)How has the administration of restitution changed as a result of the development of our current legal system?
3)What are the purposes of restitution in today's criminal justice systems?
4)Identify three impediments to full enforcement of restitution and describe solutions to these impediments?
5)Who is responsible for administering restitution?
6)Briefly describe what an ideal restitution collection program would entail.
References
Code of Hammurabi. (1904). Harper, R. F., trans. (2nd ed.).
Frank, L. F., (1992). The collection of restitution: An often overlooked service to crime victims. St. John's Journal of Legal Commentary, 8, 107-34. (Referencing J. Stark, & Goldstein, H. (1985). The rights of crime victims).
Harland, A. T. & Rosen, C. J. (1990). Impediments to the Recovery of Restitution by Crime Victims. Violence and victims, 5.
McGillis, D. (1986). Crime victim restitution: An analysis of approaches. Washington, DC: U.S. Department of Justice, National Institute of Justice.
Smith, B., Davis, R. C. & and Hillenbrand, S. W. (1989). Improving enforcement of court-ordered restitution. Funded by the State Justice Institute.
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