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1997-98 Academy Text Supplement

Chapter 21-10

Restitution

Legislative Developments on the Federal Level

• The Victims Justice Act of 1995 amended the Federal Criminal Code to require federal judges to order restitution for victims of property crimes, consumer product tampering, fraud, and drug crimes.
• The Mandatory Victims Restitution Act of 1996 was enacted as Title II of the Antiterrorism and Effective Death Penalty Act of 1996. This Act expands the scope of mandatory restitution on the federal level. It also provides consolidated procedures for the issuance of restitution orders and enhances the post-conviction enforcement of restitution orders. (Solien, L. (1996, August 23). "Mandatory Victims Restitution Act." Memorandum, Washington, DC: Executive Office for U.S. Attorneys.)

Mandatory Victims Restitution Act of 1996

The Act requires federal courts to order full restitution in certain cases. It creates a new section in the United States Code of Criminal Procedures (18 U.S.C., Section 3663A), which requires the court to enter a restitution order for each defendant, without regard to the defendant's economic situation, who has been convicted or plead guilty to charges of the following:

• A crime of violence;
• An offense against property under Title 18, including any offense committed by fraud or deceit; or,
• An offense described in section 1365, relating to tampering with consumer products. (18 U.S.C. Section 3663A(c)(1)(A)); and,
• There is an identifiable victim* or victims who have suffered a physical injury or pecuniary loss. (18 U.S.C. Section 3663(f))

The four areas of mandatory restitution enacted under the Violence Against Women Act, and cited previously in the Academy text, still exist. These four crimes are:

• Sexual abuse
• Sexual exploitation
• Domestic violence
• Telemarketing fraud

The only exception to mandatory restitution under this Act is for offenses against property if the court makes a finding that:

• The number of identifiable victims is so large as to make restitution impracticable; or,

• Determining complex issue of fact related to the cause or amount of the victims' losses would complicate or prolong the sentencing process to a degree that the need to provide restitution to any victim is outweighed by the burden on the sentencing process. (18 U.S.C. Section 3663A(c)(3))

*Note: The definition of "victim" is expanded by the new law to include those "proximately" harmed by as a result of the commission of the offense. (18 U.S.C. Sections 3663(a)(2) and 366A (a)(2))

Legislative Developments on the State Level

• Crime victims' bills of rights have been enacted in 48 states. Approximately half of these statutes provide for mandatory restitution, unless compelling reasons to the contrary are stated on court record. (Burnley, J. & Murray, M. (1997). "Restitution Reform: The Coordinated Interagency Approach," NCJ-166603. OVC Bulletin. Alexandria, VA: Victims' Assistance Legal Organization.)
• As of November 1996, a total of 29 states have passed victims rights' constitutional amendments, ten of which provide for mandatory restitution. (Ibid.)

Coordinating Restitution Within the Criminal Justice System

Recently, an OVC-funded project examined the problems inherent in the management and collection of criminal restitution. Findings from this project resulted in the development and recommendation of a jurisdictional approach to restitution management, termed the Coordinated Interagency Approach. Key to this approach is the understanding that restitution does not simply refer to the act of collecting and monitoring payments from offenders. Rather, restitution is a process that begins at the time of arrest and continues through to the period of post-supervision of an offender. It extends across the entire spectrum of the criminal justice continuum.

This approach promotes the full use of restitution within the traditional criminal justice system by implementing the following essential goals: (1) victim involvement; (2) effective communication; (3) clear delineation of restitution roles; (4) streamlining of restitution tasks; (5) routine information flow; and (6) accountability by all participants. A brief discussion of these goals follows.

The importance of the goal of victim involvement cannot be overemphasized. Simply stated, active participation of victims is essential to effective criminal prosecution and entry of accurate orders of restitution. Meaningful victim involvement is a cornerstone of the Coordinated Interagency Approach and is integral to its successful implementation.

Effective communication and coordination between criminal justice agencies and personnel are crucial. Efforts to improve restitution management will be severely hampered without the establishment of regular and effective channels of communication.

The lack of clear delineation of restitution roles can lead to the duplication of restitution services and/or failure to provide services at all. It is not uncommon for a particular task essential to the restitution process, e.g., preparation of a Victim Impact Statement, to be performed by two or even three different criminal justice agencies. Such duplication of effort is not only costly, but counter-productive. Additionally, no agency may take responsibility for the completion of some tasks or may address tasks too late in the process to be effective.

Streamlining restitution tasks is essential to eliminate unnecessary steps and duplicated efforts. This goal requires that each task be assigned to the agency most capable of performing it. If the clerk's office is bonded and has the technology to efficiently handle the physical collection of restitution payments, then it may be more efficient for this agency than the Probation Department to handle collection. Although this may require the jurisdictional "rethinking" of some procedures, it may be well worth the effort.

The routine flow of information is also essential and is closely related to the goal of agency communication and coordination. Critical to this goal is the allocation of sufficient resources to support the routine gathering and distribution of data as well as substantive and procedural information on the status of restitution accounts.

Participant involvement and accountability means that each criminal justice agency and professional be willing to take responsibility for their portion of the restitution process. With respect to these individual restitution roles, criminal justice practitioners and agencies must be accountable, not only to their jurisdictional partners, but to victims, the community, and the justice system as a whole.

(Burnley, J. & Murray, M. (1997). "Restitution Reform: The Coordinated Interagency Approach," NCJ-166603. OVC Bulletin. Alexandria, VA: Victims' Assistance Legal Organization.)

Documenting Crime Victim Losses for Restitution Orders

(This section is excerpted from Promising Practices and Strategies in Victim Services in Corrections, a publication produced with support from the Office for Victims of Crime by the National Victim Center.)

To ensure accurate and complete restitution orders, victims are required to document their losses in writing for the court or paroling authority. It is important to provide victims with guidelines

about the types of documentation that are needed to depict their out-of-pocket and projected expenses for the future.

Some considerations for guidelines that should be provided in writing to victims include, but are not limited to:

• Employer statements (letters or affidavits) that document unpaid time off from work the victim took as a result of injuries from the crime, or involvement in justice processes.

• Documentation of any workers compensation claims submitted and/or claims payments received by the victim.

• Copies of bills for services directly related to victims' financial recovery from the crime.

• Any receipts for items or services.

• Documentation that estimates the value of stolen property.

• Photos of valuables that were stolen.

• Copies of any documentation often provided by local law enforcement agencies (i.e. records of serial numbers, photos, etc.) that is intended to aid victims in the recovery of stolen property.

• Any law enforcement records that indicate the status of stolen property (i.e. property recovered, recovered but damaged, etc.)

• Copies of victims' applications to and/or copies of checks received from the state victim compensation fund.

• Copies of insurance claims and related correspondence between the victim and his/her insurance company, as well as copies of checks the victim may have received to cover losses.

Immediate Losses

During the presentence investigation, victims should be asked to report information about their losses by completing or updating a financial worksheet, and providing documentation as described above. The range of these losses can include the following:

Medical Care

• Emergency transportation to the hospital.
• Rape kit examinations that are not immediately paid by a third party.
• All expenses related to the hospital stay, including the room, laboratory tests, medications, x-rays, HIV testing in cases involving the exchange of bodily fluids, and medical supplies.
• Expenses for care provided by physicians -- both inpatient and outpatient -- medication and medical supplies.
• Fees for physical or occupational therapy.
• Replacement of eyeglasses, hearing aids, or other sensory aid items damaged, destroyed or stolen from the victim.
• Rental and related costs for equipment used for victims' physical restoration, i.e. wheelchairs, wheelchair ramps, special beds, crutches, etc.

Mental Health Services

• Fees for counseling or therapy for the victim and his/her family members.
• Any costs incurred as a result of the victim's participation in support or therapy groups.
• Expenses for medications that doctors may prescribe for victims to help ease their trauma following a crime.

Funeral Expenses

• Costs associated with burials, i.e. caskets, cemetery plots, memorial services, etc.
• Expenses for travel to plan and/or attend funerals.

Time Off From Work

• To repair damage following property crimes.
• To attend or participate in court or parole proceedings.
• To attend doctors' appointments for injuries or mental health needs directly resulting from the crime.

Other Expenses

• Crime scene cleanup.
• Costs of replacing locks, changing security devices, etc.
• Expenses related to child or elder care when victims have to testify in court.
• Relocation expenses.
• Fees incurred in changing banking or credit card accounts.

Projected Expenses

Victimization often results in injuries or losses that are long term in nature. While it is not possible to accurately document such projected expenses, it is possible to document expert opinions as to future financial obligations the victim might incur as a direct result of the crime.

Victims should be advised to seek documentation (a letter or affidavit) from professionals who are providing them with medical or mental health services that offers an estimate of the victims' future treatment needs, as well as related expenses. Such costs can include:

• Long-term medical treatment.

• Physical or occupational rehabilitation or therapy.

• Mental health counseling or therapy.

• Time that must be taken off from work to receive any of the above services.

The justice professional responsible for assessing victims' restitution needs should provide this documentation to the court or paroling authority. (Seymour, A. (1997). Promising Practices and Strategies in Victim Services in Corrections. Arlington, VA: National Victim Center.)

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