New Directions From the Field: Victims' Rights and Services for the 21st Century - Restitution

Document Sample
New Directions From the Field: Victims' Rights and Services for the 21st Century - Restitution Powered By Docstoc
					U.S. Department of Justice
Office of Justice Programs
Office for Victims of Crime



Office for Victims of Crime                                                                                                          16 of 19



  OVC Bulletin
      Advocating for the Fair
            Treatment of Crime Victims
                                                                                                                New Directions
                                                                                                                     Restitution

 Message from                                                 New Directions from the Field:
 The Director
                                                              VictimsÕ Rights and Services for the 21st Century

 N
        ew Directions from the Field: VictimsÕ Rights and
        Services for the 21st Century is a comprehensive
        report and set of recommendations on victimsÕ
 rights and services from and concerning virtually every      Restitution
 community involved with crime victims across the
 nation. The report represents a significant maturation
 in the field of victimsÕ rights and services since the       The concept of personal accountability for the consequences of
 PresidentÕs Task Force on Victims of Crime released
 its Final Report in 1982. New Directions chronicles          oneÕs conduct, and the allied notion that the person who causes
 the extraordinary accomplishments of a still young           the damage should bear the cost, are at the heart of civil law. It
 field, but also recommends what we as a society              should be no less in criminal law.
 should strive to achieve for victims as we enter the
 21st century.
                                                                   The Final Report of the 1982 PresidentÕs Task Force on Victims of Crime
 New Directions is the culmination of more than 3
 yearsÕ work by over 1,000 individuals in the victims
 field including crime victims, representatives from          Restitution holds offenders             survivors of homicide victims.
 national victim advocacy and service organizations,
 criminal justice practitioners, allied professionals, and    partially or fully accountable for      Other types of cases in which
 many others. In addition, literally hundreds of refer-       the financial losses suffered by        restitution is commonly ordered
 ence documents were utilized and listed in the end-          the victims of their crimes.            are theft of services (e.g. cab or
 notes of each of the 18 chapters. The work of these          Restitution is typically ordered in     restaurant bills), fraud, forgery,
 individuals and the publication and dissemination of
 this material has been supported by the Office for           both juvenile and criminal courts              and violation of vehicle
 Victims of Crime (OVC). The report and recommenda-           to compensate victims for                       and traffic laws. Restitu-
 tions represent views from the field, however, and do        out-of-pocket                                    tion is not a punishment
 not necessarily reflect the views of the Department of       expenses that                                      or an alternative to
 Justice. Moreover, while the recommendations may
 not reflect all of the individual contributorsÕ views, the   are the direct                                      fines, sanctions, or
 contributors agree that all of the recommendations are       result of a                                          interventions with the
 worthy of discussion and consideration.                      crime. Most                                           offender. It is a debt
                                                              often, it is ordered                                   owed to the victim.
 This bulletin is a reprint of chapter 15 from New
 Directions and deals specifically with promising prac-       in cases of property                                    Recently, judges
 tices and recommendations related to Restitution. As we      crime such as a                                          have also begun
 move into the 21st century, New Directions should serve      home burglary                                              to order
 as a vitally useful guide for developing policies, pro-      involving stolen or                                         Òcommunity
 grams, and practices on behalf of crime victims well
 into the next century. As comprehensive as this report is,   damaged property or                                          restitution,Ó in
 however, the real challenge begins now. After you read       the theft of goods from                                       which
 the recommendations, after you have examined the             a retail store. It may also                            convicted or adjudi-
 numerous promising practices presented in each section,      be applied to reimburse                      cated offenders Òpay backÓ
 then I encourage you to move forward to see how you
 can implement improvements in a manner that meets            victims of violent crime for            the community through service.
 the needs of crime victims.                                  current and future expenses
                                                              related to their physical and           The concept that offenders should
                      Kathryn M. Turman                       mental health recovery and to           provide restitution to the victims
                      Acting Director
                                                              make up for loss of support for         of their criminal or delinquent
                      Office for Victims of Crime


                                                                                                                                         1
New Directions from the Field: Victims’ Rights and Services for the 21st Century

acts can be traced back thousands of       order restitution to the victim in all    proceedings. Other significant
years to the earliest forms of laws        cases in which the victim has             changes may be on the horizon. A
governing society.1 In the Bible,          suffered financial loss, unless they      victimsÕ rights constitutional
recompense to the victim included not      state compelling reasons for a            amendment proposed in Congress in
only reimbursing or replacing the          contrary ruling on the record.Ó7          1997 calls for an order of full restitu-
victim for what was lost, but                                                        tion from the convicted offender.12
additional measures as a guilt             Restitution is needed, the PresidentÕs
offering.2 Over time, government took      Task Force argued, because:               In the decade that followed the 1982
responsibility for prosecuting crimes,                                               passage of the Victim and Witness
and crimes were viewed as committed        It is simply unfair that victims should   Protection Act, every state passed
against the state, not against the         have to liquidate their assets,           statutes addressing restitution, most
victim.3 As a result, for the most part,   mortgage their homes, or sacrifice        following the lead of the federal
restitution was forgotten.4                their health or education or that of      model. However, states continue to
                                           their children while the offender         amend their statutes, creating a
Modern-day restitution emerged in          escapes responsibility for the            patchwork of financial reparations for
the 1930s with the establishment of        financial hardship he has imposed . . .   victims across the country. As of
penal laws in some states permitting       if one of the two must go into debt,      1995, 29 states had followed federal
restitution as part of suspended           the offender should do so.8               law in mandating restitution in all
sentences and probation.5 In the                                                     cases, unless the presiding judge
1960s and 1970s, a number of restitu-      As a result of these developments,        offers compelling reasons not to do
tion initiatives emerged. Federal          national research efforts soon            so.13 Some states, however, mandate
funding became available in the mid-       followed. Two early studies published     restitution only in cases involving
1970s for the development of restitu-      in the 1980s, Crime Victim Restitu-       violent crimes, while others mandate
tion programs across the country.          tion: An Analysis of Approaches, a        restitution only in cases involving
Recommendations for the considera-         comprehensive review of restitution       property crimes.
tion of restitution were made in           programs published by the National
policy statements of such groups as        Institute of Justice in 1986,9 and the    Moreover, in some states, not only
the National Commission on                 American Bar AssociationÕs                the victim but family members,
Criminal Justice Standards and             Guidelines Governing Restitution to       victimsÕ estates, private entities,
Goals, the Council of Judges of the        Victims of Criminal Conduct in 1988,10    victim service agencies, compensa-
National Council on Crime and              highlighted model restitution             tion programs, and private organiza-
Delinquency, the American Bar              approaches. Both publications cited a     tions that provide assistance to
Association, and the American Law          need for increased accountability on      victims may seek restitution. A
Institute. It was not until the 1980s,     the part of the justice system and the    number of states require that offend-
however, that restitution found new        offender to make consistent payment       ers be on probation or parole before
prominence as a critical element of        of restitution a reality.                 victims may collect restitution, and
the victimsÕ rights movement.                                                        many do not require restitution from
                                           Over a decade later, the importance       juvenile offenders.14
Restitution as a significant remedy        of restitution was emphasized on the
for crime victims was first addressed      federal level with the enactment in       Despite the passage of federal and
on the federal level with the              1994 of the Violent Crime Control         state legislation, restitution remains
enactment of the Victim and Witness        and Law Enforcement Act, which            one of the most underenforced victim
Protection Act (VWPA) of 1982,             made restitution mandatory in cases       rights within the criminal and juvenile
which required federal judges to           of sexual assault or domestic             justice systems. Evidence of this is
order full restitution in criminal cases   violence. In 1996, restitution was        apparent both in decisions to order
or state their reasons for not doing so    made mandatory on the federal level       restitution and in efforts to monitor,
on the record.6 The same year, the         in all violent crime cases and in         collect, and disperse restitution
Final Report of the PresidentÕs Task       certain other cases with the passage      payment to victims. In a 1992 report
Force on Victims of Crime reinforced       of the Mandatory Victim Restitution       on recidivism of felons on probation,
the language of the VWPA by                Act.11 Full implementation of these       the Bureau of Justice Statistics
recommending that Òjudges should           provisions will bring new importance      reported the results of a two-phase
                                           to restitution in federal criminal


 2
New Directions from the Field: Victims’ Rights and Services for the 21st Century

survey of selected counties.15 Of the      manage a successful restitution
32 counties surveyed, only half            program. These obstacles include the        I think if the criminals who do these
required restitution in at least one-      belief among some justice profes-
third of all felony probation cases.16 A   sionals that all offenders are indigent     things are caught they should have to
study of a followup sample revealed        and cannot afford to pay restitution;       pay for the damage they do, even if it
that the average restitution order         the fact that restitution orders often      takes them years. My family and I will
imposed was $3,368 per                     are not first in the priority of court-
                                                                                       be trying to recover from this for the
probationer.17 For felony probationers     ordered payments and follow behind
who had completed their sentences,         court costs, fines, costs of salaries for   rest of our lives.
only 54 percent of the amount of           justice officials, costs of incarcera-
restitution ordered was paid.18            tion, and other financial obligations;
                                                                                                     A victim, The 1982 President’s
                                           the lack of interagency agreements
National research studies indicate that    stipulating who is responsible for                               Task Force Final Report
restitution is one of the most signifi-    monitoring, enforcing, collecting and
cant factors affecting the satisfaction    disbursing restitution; and cynicism          communications system to link the
of victims with the criminal justice       of some crime victims and service             various agencies, including those
process. The results of a 1989 study       providers about efforts to collect            responsible for restitution, batter-
funded by the State Justice Institute      restitution, which contributes to low         ersÕ intervention, and substance
and conducted by the American Bar          employee morale among those                   abuse treatment.
Association (ABA) found that victims       responsible for monitoring restitution
who were not satisfied with their          programs and payments.22 While all          ¥ In New Jersey, a pilot program has
involvement in the criminal justice        of these barriers can be overcome,            been initiated to improve the rate
system cited their lack of input into      each must be closely examined and             of offender payment of court-
the decision about how much restitu-       addressed when agencies seek                  ordered fines, restitution, and
tion to impose and the lack of             measures to improve their restitution         community service. By using a
information provided to them about         collection programs.                          consistent sanctioning policy
the criminal justice process.19 The                                                      toward sentence violators and a
ABA study found that victims                                                             centralized bench warrant process
expressed the most satisfaction with
                                           Models for Implementing
                                                                                         before one judicial officer in the
the process when they felt there was       Restitution Statutes                          Superior Court, the project has
communication between them and a                                                         produced immediate significant
member of the criminal justice system      Restitution can be a highly complex
                                           process, involving numerous profes-           results. The success of the
who served as their contact, most
                                           sionals and a diverse array of tasks.         program encouraged 10 other New
typically a member of the victim-
                                           Moreover, there are inherent                  Jersey jurisdictions to start similar
witness office. Earlier in 1980,
                                           problems in requiring financial               pilot programs.
Hudson and Galway found that a
majority of the victims they surveyed,     reparation from offenders who appear
                                                                                       ¥ The Earn-It Program, first created
61 percent, viewed monetary restitu-       to be indigent at the time of sentenc-
                                           ing. Many jurisdictions across the            in Quincy, Massachusetts, places
tion as the fairest form of
                                           country are experimenting with and            offenders who are ordered to pay
punishment.20 However, more than
                                           institutionalizing procedures to              restitution with local businesses for
half of the survey, 51 percent,
                                           enhance and streamline restitution            employment. The offenders are
indicated dissatisfaction with restitu-
tion, mostly because they felt the         collection.                                   paid minimum wage and keep one-
amount imposed was insufficient.21                                                       third of their earnings. The
                                           ¥ In New York City, the Criminal              remaining two-thirds is paid to
In 1997, the Promising Practices and         Court is establishing a Òcourt-             victims.23 For juvenile offenders,
Strategies for Victim Services in            based infrastructureÓ to ensure             the program requires community
Corrections project, sponsored by the        strict accountability for all               service in place of monetary
National Victim Center with support          conditions, including restitution,          restitution. The program has been
from the Office for Victims of Crime,        that are imposed by the court. The          replicated in many jurisdictions
identified 10 obstacles that directly        Court is developing an innovative           around the country.
influence a jurisdictionÕs ability to        electronic information and

                                                                                                                               3
New Directions from the Field: Victims’ Rights and Services for the 21st Century

                                                 figures for amounts received during     on restitution reform.25 Supported
The coordinated inter-agency approach            the current month, total paid, and      with funding from the Office for
                                                 total owed. Any changes in the          Victims of Crime, VALORÕs report
to restitution management is a common
                                                 status of a restitution case are        outlines five essential goals for
sense approach to solving some of the            circulated to all agency heads.         managing restitution using a coordi-
problems that have plagued restitution                                                   nated interagency approach:
programs for decades. This approach
                                               ¥ In Phoenix, Arizona, the Maricopa
                                                 County Probation Department             ¥ Effective Communication and
promotes the full use of restitution             requires probationers enrolled in         Coordination Among Criminal
within the traditional criminal justice          the intensive supervision program         Justice Agencies and Professionals.
system by implementing essential goals           and the work furlough program             Effective communication and
                                                 who owe restitution to endorse            coordination among criminal
of victim involvement, effective
                                                 their paycheck and sign them over         justice and juvenile agencies and
communication, clear definition and                                                        personnel are crucial to successful
                                                 to the probation department.
streamlining of tasks and roles, routine         Another check is then issued to the       restitution management. A lack of
information flow, and accountability             offender, minus the restitution           communication affects every aspect
                                                 payment. Probationers enrolled in         of the process and severely
by all participants.
                                                 the day reporting program are also        hampers any efforts to improve
                                                 subject to this requirement.              restitution management.
         Jane N. Burnley & Morna A. Murray
                                               ¥ In Summit County, Colorado,             ¥ Clear Definition and Delineation of
         Restitution Reform: The Coordinated
                                                 offenders who owe more than               Restitution Roles. Because restitu-
                 Interagency Approach,1997
                                                 $2,000 in restitution are required,       tion involves a multitude of tasks,
                                                 as a condition of probation, to           it is essential that agency roles be
¥ In Westchester County, New York,                                                         clearly defined and acknowledged.
                                                 submit their income tax returns to
  the probation department established                                                     Lack of such clarity can lead to
                                                 their probation officers. If the
  an Economics Sanctions Unit in                                                           duplication of services or failure to
                                                 offender is entitled to a tax refund,
  1991 with responsibility for collect-                                                    provide certain services at all.
                                                 the probation officer can require
  ing restitution. Payments from                                                           Neither the victim nor justice is
                                                 the offender to pay that amount
  probation are mailed to the Unit and                                                     served when the system fails to
                                                 toward their restitution obligation.
  restitution accounts are monitored                                                       define and assign the roles
  by the accounting staff. Probation           ¥ On the federal level, the Bureau of       involved in restitution in a manner
  officers receive special training on           Prisons has developed an Inmate           that is both efficient and effective.
  the collection of restitution, and the         Responsibility Program that
  Unit works with officers when                  requires inmates to make contribu-      ¥ Efficient and Streamlined Coordina-
  offenders have problems making                 tions from their inmate wages             tion of Restitution Tasks. Restitution
  payment. In addition, the probation            toward their financial obligations,       tasks must be viewed with a keen
  departments of both Westchester                including restitution.                    eye toward eliminating unnecessary
  County and Alexandria, Virginia,                                                         steps and duplication of efforts.
  evaluate probation officersÕ                                                             Tasks should be assigned to the
  proficiency in managing restitution
                                               Coordinated Interagency                     agency most capable of performing
  cases as a component of their job            Restitution Collection                      it efficiently. At times, this may
  performance evaluation.24                                                                require rethinking procedures or
                                               A coordinated interagency approach          reallocating resources.
¥ In Alexandria, Virginia, the ClerkÕs         to restitution collection has been
  office generates restitution data and        implemented by the City of Alexan-        ¥ Routine Flow of Information and
  circulates a monthly report to all key       dria, Virginia, as well as other            Data. Establishing an efficient,
  players in the criminal justice system       jurisdictions across the country.           routine flow is important for two
  that helps them manage restitution           These programs were studied by the          types of restitution information:
  functions more effectively. The              Victim Assistance Legal Organization        substantive data and procedural
  report lists each restitution case, with     (VALOR) in 1995-1996 for a project
                                                                                           data. It is extremely important for

 4
New Directions from the Field: Victims’ Rights and Services for the 21st Century

  each agency at each stage of the           offenders to make payments to the          Civil Remedies
  criminal and juvenile justice              state, which are then converted to
  system to be aware of any develop-         government checks and disbursed            According to the National Victim
  ments, changes, or problems that           to victims and other payees. COPS          Center, 41 states have laws that
  have occurred in other agency              links all 155 probation offices, 51        provide civil remedies for victims
  restitution responsibilities.              major institutions, 32 community           whose offendersÕ sentences include
                                             correctional centers, and 43 road          restitution orders. In most of these
¥ Participation and Accountability by        prisons, work camps, and forestry          states, once an offender has defaulted
  All Parties to the Process. Each           camps. A 4 percent surcharge on            on payment, a civil judgment can be
  criminal and juvenile justice system                                                  enforced by placing a lien on real
                                             all court-ordered obligations is
  agency and professional must take                                                     property, garnishing wages, attaching
                                             used by the department to defray
  responsibility for their portion of                                                   assets or wages, or freezing bank
                                             the costs of processing payments
  the restitution process. To do this,                                                  accounts. The attachment of
                                             from offenders.                            deposited funds (ÒfreezingÓ) is
  agencies should recognize their
  interdependence and use a coordi-        ¥ The Washington Department of               usually time-limited from the initial
                                                                                        restitution order (such as 24 months),
  nated, interagency approach.               Corrections operates a highly
                                                                                        unless it is extended by the court or
                                             successful automated billing
This commonsense approach to                                                            paroling authority.
                                             system that sends monthly
restitution is promising for solving         ÒbillingsÓ to offenders who have           Laws in several states provide for
problems that have plagued effective         outstanding restitution orders,            specific measures to enforce restitu-
administration of restitution programs       allowing them to budget victim             tion orders as civil judgments.
for decades. Underlying its success is       restitution as they would any other        Delaware allows up to one-third of
the requirement that restitution
                                             financial obligation. The system           an offenderÕs total earnings to be
receive priority at every level of the
                                             accepts credit cards for payment.          assigned to victim restitution.
criminal and juvenile justice systems.
                                                                                        Minnesota and Washington provide
                                           Innovative Approaches to                     for the freezing of bank accounts, and
Restitution and                                                                         courts in Montana and Oklahoma
Automation                                 Collecting Restitution                       may order the forfeiture, seizure, or
                                                                                        sale of offendersÕ assets.
                                           Across the country, some jurisdic-
One of the most significant barriers to
                                           tions are using innovative strategies
collecting restitution is a lack of                                                     Forfeiture of Bond Money
                                           to collect restitution when offenders
automation. Often, multiple agencies,
                                           fail to pay on schedule. These efforts
in addition to the victim and offender,                                                 In Westchester County, New York,
                                           include using civil remedies, making
are involved in the restitution process.                                                when a violation of probation is filed
                                           offenders forfeit bond money for
When data regarding orders, payment                                                     as a result of failure to pay restitu-
                                           restitution obligations, collecting
or nonpayment, and related informa-                                                     tion, the probation officer can request
                                           restitution while offenders are institu-
tion are not readily available and                                                      bail. The officer then suggests that
                                           tionalized as well as after they are
shared, restitution orders fall through                                                 the court set bail in the amount of the
                                           placed on parole, providing
the cracks of the justice system. To                                                    owed restitution, if the amount is not
                                           incentives for incarcerated offenders
address this problem, several jurisdic-                                                 unreasonable. In the accompanying
                                           to pay restitution, accepting credit
tions have implemented innovative,                                                      report to the court, the court is
                                           card payments, garnishing wages,
cost-effective automated systems.                                                       advised that if the violation is
                                           converting restitution orders to
                                                                                        sustained and the probationer is
¥ The Court-Ordered Payment                community service, extending
                                                                                        willing to assign the bail money as
  System (COPS) is an automated            community supervision until offend-
                                                                                        payment of restitution, the probation
  collection system located on the         ers fulfill their restitution obligations,
                                                                                        department would recommend that
                                           and hiring private collection agencies
  mainframe computer of the Florida                                                     probation be continued or, in some
                                           to seek payment. These innovative
  Department of Corrections and                                                         cases, terminated. The report
                                           methods are discussed below in
  linked to the offenderÕs criminal                                                     recommends alternative sentences for
                                           further detail.
  history and supervision/inmate
  records. The program requires

                                                                                                                            5
New Directions from the Field: Victims’ Rights and Services for the 21st Century

probationers who will not assign bail    inmates and parolees as well as money     restitution order is better than nothing
money. These sanctions modify the        from annual inmate fundraising events.    at all. When contracting for the
order to include a graduated sanction                                              services of private collection
such as Òshock time,Ó community          Community Restitution                     agencies, justice agencies should
service, or electronic monitoring. In                                              establish clear guidelines for accept-
some instances, a recommendation of      When offenders are truly indigent and     able collection tactics and secure the
revocation and a sentence of             unable to pay even a portion of their     permission of the victim.
incarceration is made.                   restitution order, many correctional
                                         agencies give offenders the option of     Victim Services, Inc., a nonprofit
                                         performing community restitution. It      organization, manages the restitution
Restitution Collection in                                                          collection program in New York
                                         should only be imposed, however,
Institutions                             after victims have given their consent.   City for all nonprobation cases. In
                                         Some victims may want to have the         fiscal year 1997, 2,732 cases were
Many forward-looking correctional                                                  referred to the organization, which
                                         restitution order remain in effect for
agencies encourage inmatesÕ partici-                                               collected a total of $1,830,000.
                                         the offenderÕs lifetime rather than see
pation in fulfilling their restitution                                             Overall, the payment rate in those
                                         their debt discharged in another
obligations and increase collections                                               cases was 79 percent.
                                         fashion. Other victims may feel a
by offering incentives. Correctional
                                         measure of compensation by helping
agencies use a variety of measures to
do this, including increasing inmatesÕ
                                         to select the type and location of the    Enforcing Restitution Statutes
                                         service that offenders will perform.
privileges for visitation and services                                             Several states and local jurisdictions
                                         Offenders generally perform services
at the prison commissary, giving                                                   have undertaken innovative measures
                                         directly for the victim, for a favorite
them priority enrollment in popular                                                to enforce restitution orders. In some
                                         charity of the victim, or a public work
education programs, and removing                                                   states, offenders who fail to pay
                                         project of the agency that the victim
privileges for failure or refusal to                                               restitution risk being held in contempt
                                         chooses. Victim restitution does not
participate in the departmentÕs victim                                             of court, imprisoned, or having their
                                         preclude an order of community
restitution program. Restitution                                                   parole or probation extended or
                                         restitution as well. The offender not
program staff and court officials must                                             revoked.26 Such sanctions can be
                                         only has caused monetary damage to
be educated on the availability of                                                 lifted in extreme cases in which an
                                         the victim but also has damaged the
prison restitution procedures.                                                     offender can demonstrate hardships
                                         safety and security of the community
                                         as a whole.                               that prevent them from making
The California Department of Correc-
                                                                                   payment. However, in such cases,
tions (CDC) has implemented an
                                                                                   restitution payment schedules should
Inmate Restitution Fine Collections      Using Private                             be adjusted, not abandoned.
System supported by state law that
enables the department to deduct up to
                                         Collection Agencies
                                                                                   It is important that victims understand
50 percent of inmate wages and other     Some states authorize justice             their obligation to report nonpayment
trust account deposits to pay court-     agencies to use the services of private   of court- and parole board-ordered
ordered restitution. This amount is      collection agencies to secure restitu-    restitution so that correctional agencies
forwarded to the State Board of          tion payments. The use of private         can assess the reasons for nonpayment
Control Restitution Fund, which          collection agencies, which have           and consider sanctions. Victims should
provides reimbursement to qualified      experience, automated systems, and        be provided the opportunity to have
victims for expenses such as medical     employees trained to track down           input into the types of sanctions that
costs and counseling incurred as a       delinquent debtors, can significantly     might be imposed.
result of the crimes committed against   increase the collection of restitution.
them. Since its inception in November    Although a percentage of the
1992, this system has resulted in the    payment collected is kept by the
collection of over $9 million from       collection agency, reducing the
inmate wages and trust account           amount of restitution the victim
deposits. CDCÕs Victim Services          receives, many justice agencies and
Program staff also coordinates           victims feel that 90 percent of a
voluntary restitution payments from

 6
New Directions from the Field: Victims’ Rights and Services for the 21st Century

Recommendations from                                                                 generate more successful perfor-
                                             RESTITUTION RECOMMENDATION              mances and lower recidivism rates.
the Field for Restitution                          FROM THE FIELD #2
                                                                                        RESTITUTION RECOMMENDATION
   RESTITUTION RECOMMENDATION               A coordinated, interagency
                                                                                              FROM THE FIELD #4
         FROM THE FIELD #1                  response throughout the justice
                                            system is essential for the                Victims should be informed as early
  Restitution orders should be              effective collection of restitution.       as possible in the justice process of
  mandatory and consistent nation-                                                     their right to receive restitution from
  wide. Full restitution should           It is critical that all justice agencies     the offender. They should be
  include all immediate and               responsible for restitution, including
                                                                                       notified of the disposition of the
  expected monetary costs of the          courts, probation, prosecution, and
                                          corrections, implement coordinated,          case, advised of realistic expecta-
  crime to victims, including                                                          tions for payment, and provided
                                          interagency models for the collection
  property loss, health and mental                                                     with information about their rights
                                          of restitution to enable professionals
  health costs, and, when appropri-       at each stage of the process to carry        when offenders fail to pay.
  ate, compensation for pain and          out their responsibilities more
  suffering. When a victim cannot         effectively. Much of the disparity         Because many victims are not
  be identified to receive restitution,   between the perceived and actual           informed of their right to obtain
  judges should consider ordering         effectiveness of restitution practices     restitution for their losses, they do not
  payment to national, state, or          may be traced to procedures that have      adequately document their financial
  local victim assistance or
                                          become cumbersome because they             losses. Without this evidence, victims
                                          involve numerous agencies and              have a difficult time proving damages
  compensation programs. Judges
                                          personnel. A coordinated interagency       at the time of sentencing. Victims
  should review restitution orders        approach to restitution collection that    should be informed of their right to
  periodically to assess whether the      manages this complex process with          restitution as early as possible, and
  victim has incurred additional          clearly defined roles and streamlined      they should receive information at
  costs as a result of the crime and      tasks will improve communication           that time on what type of documenta-
  whether the offender is making          among agencies, increase consultation      tion is necessary for the court and
  timely payments. Restitution            and communication with victims, and        what methods they can use to obtain
  payment plans should include
                                          enforce judicial restitution orders with   that documentation. In addition,
                                          appropriate followthrough.                 victims should be informed of whom
  provisions for immediate payment
  of full restitution should the
                                                                                     to call if they have any problems or
                                             RESTITUTION RECOMMENDATION
                                                                                     questions. The appropriate agencies
  offender obtain additional
                                                                                     must initiate proceedings in those
  financial assets.                                FROM THE FIELD #3                 jurisdictions which provide for
                                                                                     statutory imposition of civil remedies.
Judges should order full restitution        Restitution must be a priority for
in every case. Realistic payment            all criminal justice agencies if it
schedules should be established, and        is to be implemented successfully.          RESTITUTION RECOMMENDATION
victims should be advised fully                                                               FROM THE FIELD #5
about realistic expectations for the      Because multiple entities are involved
likelihood and speed of full collec-      throughout the restitution process,          At the time of sentencing, courts
tion. Restitution orders should           successful collection depends on their       should have sufficient information
reflect the full extent of damages to     ability to cooperate. Studies show that      about both the victim and the
the victim so that victims can seek       compliance increases when restitution        offender to determine the amount
civil judgments in that amount.           is made a priority in correctional           of full restitution and a payment
                                          agencies, but lags when restitution is       schedule.
                                          not a top agency concern. Programs
                                          that aggressively target restitution


                                                                                                                             7
New Directions from the Field: Victims’ Rights and Services for the 21st Century

Judges often state that their failure to   agencies and improve the tracking of       who default on payments range from
order restitution is due to a lack of      money collected, owed, and                 informal communication by the
information regarding the victimÕs         disbursed. Many jurisdictions are          probation officer to a court-ordered
loss or the offenderÕs financial assets    creating software packages that fully      revocation hearing. When appropriate,
or future ability to pay. Presentencing    automate restitution processes, which      the probation officer should consider
reports must contain victim impact         substantially increases both restitution   steps to modify the payment schedule.
information on financial losses,           collection and victim satisfaction.        If an action is taken that will affect
including current and expected                                                        the payment of restitution, the victim
medical and counseling expenses,           One reason restitution orders are not      should be informed. When an
lost wages, and property losses.           enforced is the cost involved in           offenderÕs probationary period is
Presentencing reports should also          tracking the orders. Automation can        coming to a close and an outstanding
cover offendersÕ ability to pay restitu-   improve efficiency and, over time,         balance of restitution remains, the
tion, including information on wages       greatly reduce this cost. One software     probation department or the court
accumulated while incarcerated             package, for example, includes             should extend supervision, step up
pending trial or final sentencing.         programs for tracking payments,            collection, or assist victims with
Moreover, victim impact statements         establishing disbursement priorities,      procedures to pursue civil judgments.
should describe the cost of the crime      prompting enforcement measures and
to the victim, particularly in cases in    generating enforcement reports, and        Offenders are generally unable to pay
which a presentence investigation          writing checks to victims. To facilitate   all restitution, fines, court fees and
report was not filed.                      the collection of restitution, adminis-    other costs in one lump sum. It is
                                           trative fees should be included in any     logical and right that the party least
Justice professionals and victim           order that includes payment in install-    able afford to absorb the lossÑthe
service providers also have a respon-      ments. These fees should be used to        victimÑbe paid first. Several states
sibility to educate victims about how      develop computerized tracking              and the federal government have
to document immediate losses such          systems or to prioritize collection.       already legislated such a priority.27
as expenses related to medical care,
mental health services, funeral
expenses, time off from work, and             RESTITUTION RECOMMENDATION                 RESTITUTION RECOMMENDATION
crime scene cleanup and relocation.                 FROM THE FIELD #7                          FROM THE FIELD #8
The guidelines for documenting
losses for restitution orders that were      Offenders should be held account-          Corrections agencies, including
developed through the National               able for restitution payments;             prisons, jails, probation depart-
Victim CenterÕs Promising Practices          state legislation should make              ments, and paroling authorities,
and Strategies for Victim Services in        restitution payments a priority            should designate one person to be
Corrections project sponsored by the         over other payments due from the           responsible for victim inquiries
Office for Victims of Crime should
                                             offender, including fines, fees,           and contact regarding restitution.
be widely distributed to victims.
                                             and restitution to entities other
                                             than the crime victim; and restitu-      Victims are often confused about
     RESTITUTION RECOMMENDATION              tion payments should be collected        which official to call with questions
           FROM THE FIELD #6                 before fines or penalties.               and concerns about restitution
                                                                                      because so many agencies are
  The use of technology can greatly                                                   involved in the process. Designating
                                           Correctional agencies should put
  enhance the tracking and payment                                                    one person or office for victims to
                                           procedures in place for dealing with
                                                                                      contact for reliable and accurate
  of restitution orders. Those respon-     offenders who fail to pay restitution
                                                                                      information will help facilitate an
  sible for monitoring restitution         as ordered. When offenders fail to
                                                                                      effective restitution process.
  should automate their program.           make restitution payments, notice
                                           should be sent to the appropriate
The full automation of restitution         judicial or probation officers to
collection will assure more efficient      reevaluate the offendersÕ ability to pay
communication among responsible            and their release status. Measures that
                                           can be taken in response to offenders

 8
New Directions from the Field: Victims’ Rights and Services for the 21st Century

                                           automatic civil lien, garnishing         already provide victims this opportu-
   RESTITUTION RECOMMENDATION              wages, suspending driverÕs licenses,     nity to be heard, and it should be
         FROM THE FIELD #9                 placing automatic liens on real          standard practice in all states.29 In
                                           property, and intercepting state         Arizona, the victim is also entitled to
  A probation or parole officer’s          income tax refunds. Agencies             question the defendant under oath
  proficiency in managing restitution
                                           responsible for the collection of        about his employment, assets, and
                                           restitution should inform victims        financial condition.30
  cases should be a component of
                                           about these civil options. For a more
  evaluating their job performance.        detailed discussion of civil remedies,
                                           see the next chapter of this section.
The ability to manage restitution
cases should be considered an
essential part of a probation and             RESTITUTION RECOMMENDATION
parole officersÕ job. Evaluations of               FROM THE FIELD #12
job performance should include this
important responsibility.                    Victims should have the right to
                                             petition to amend the payment
   RESTITUTION RECOMMENDATION                schedule for restitution, the
                                             amount of restitution ordered, and
        FROM THE FIELD #10
                                             any failure to order restitution.
  Failure to comply with a restitu-
  tion order should result in an           Victims of crime frequently incur
  extended sentence of the
                                           losses that are not known at the time
                                           of sentencing. Expenses for rehabili-
  offender’s community supervision.
                                           tation and long-term counseling as
                                           well as additional lost wages are
In the state of Washington, offenders      often incurred following the sentence.
who fail to comply with their restitu-     Victims should have the right to
tion orders can have their sentence of     petition the court to modify the
community supervision extended for         restitution order. Several states have
up to 10 years by the department of        adopted this approach as a matter of
corrections. Often, an offenderÕs desire   law.28
to be released from community
supervision provides impetus for
offenders to fulfill their restitution        RESTITUTION RECOMMENDATION
requirements in a more timely manner.              FROM THE FIELD #13

                                             Before the court modifies a
   RESTITUTION RECOMMENDATION
                                             payment plan or makes other
        FROM THE FIELD #11
                                             changes to a restitution order, it
  Civil remedies should be applied           should notify the victim and give
  on a routine and consistent basis          them an opportunity to be heard
  to assist crime victims in collect-        on the matter.
  ing restitution.
                                           Of all the parties concerned, restitu-
                                           tion orders affect the victim most.
More than 40 states have enacted
                                           Any change in a restitution order
laws to provide civil remedies for the
                                           must involve consideration of the
collection of court-ordered restitu-
                                           victimÕs interests by soliciting input
tion. Such remedies include convert-
                                           from the victim. Several states
ing the restitution order into an

                                                                                                                         9
New Directions from the Field: Victims’ Rights and Services for the 21st Century

Endnotes
1     Most people are familiar with the term “an eye for an eye,” which dates back to the Code of Hammurabi in the 18th century B.C.. R. F.
      Harper, Code of Hammurabi (trans. 1904) (2nd ed.). The Hebrew Law of Moses (about 1688 B.C.) specifically provided for the
      payment of restitution.
2     Exod. 22:1, 7, 9 and Lev. 6:1-5.
3     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, L.F., The Collection of Restitution: An Often Overlooked Service to Crime Victims, ST. JOHN’S JOURNAL OF LEGAL
      COMMENTARY 8, 107-34 (1992), referencing J. Stark, & H. Goldstein, The Rights of Crime Victims (1985). 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.
      The victim then 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.
4     Id., Frank.
5     Id. at 111.
6     Victim and Witness Protection Act of 1982, Pub. L. No. 97-291, Sec.4, 96 Stat. 1249 (codified at 18 U.S.C. Secs. 1512-1515; Fed. R. Crim.
      P. 32).
7     President’s Task Force Report on Victims of Crime, Final Report, Washington, D.C.:U.S. Government Printing Office, December
      1982:72.
8     Id. at 79.
9     McGillis, D., Crime Victim Restitution: An Analysis of Approaches, Washington, D.C.: U.S. Department of Justice, National Institute of
      Justice, 1986, NCJ 103680.
10 American Bar Association, Guidelines Governing Restitution to Victims of Criminal Conduct, Washington, D.C.:American Bar Associa-
   tion, 1988.
11 The Mandatory Victim Restitution Act,Title II of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132 (1996),
   18 U.S.C. § 3663A (1996).
12 S.J. Res. 52, 104th Cong., 2d Sess., 149 Cong. Rec. S3792-06 (1996); H.J. Res. 173, 104th Cong. 2d Sess., 142 Cong. Rec. H3657-08 (1996);
   H.J. Res. 174, 104th Cong., 2d Sess., 142 Cong. Rec. H3657-08 (1996). S.J. Res. 6, 105th Cong., 1st Sess. (1997).
13 Id.
14 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. See generally National Victim Center, 1996 Victims’ Rights Sourcebook: A Compilation
   and Comparison of Victims Rights Laws, National Victim Center,Arlington,VA., 1997, §11.
15 Langan, P. A., and M. A. Cunniff, Recidivism of Felons on Probation, 1986-89, Washington, D.C.: U.S. Department of Justice, Bureau of
   Justice Statistics, February 1992.
16 Id.
17 Cohen, R., Probation and Parole Violation in State Prison, 1991 (August 1995).
18 Id.
19 B. Smith et al., Improving Enforcement of Court-ordered Restitution, funded by the State Justice Institute, 1989.
20 Id.
21 National Victim Assistance Academy, National Victim Assistance Academy Text, Alexandria,VA, 1997:21-10-7.
22 Seymour,A.,“Victim Restitution,” Promising Practices and Strategies for Victim Services in Corrections, Office for Victims of Crime
   and National Victim Center,Arlington,VA, 1997:VI-4/5.
23 McGillis, D., Crime Victim Restitution: An Analysis of Approaches, 9.




 10
New Directions from the Field: Victims’ Rights and Services for the 21st Century

24 American Probation and Parole Association, Promising Victim-Related Probation and Parole Practices, American Probation and Parole
   Association, 1997:44.
25 Burnley, J. and Murray, M., Restitution Reform: The Coordinated Interagency Approach, Washington, D.C.:Victims’Assistance Legal
   Organization and Office for Victims of Crime, U.S. Department of Justice, 1997.
26 National Victim Center, 1996 Victims’ Rights Sourcebook, Sec. 11.
27 See e.g., IOWA CODE § 910.2,WIS. STAT. § 973.20, and 18 U.S.C. 3612 (payment of the penalty assessment has the first priority, but
   payment of restitution has priority over all other fines, penalties, costs, and other payments required under the sentence).
28 Alabama allows any of the parties with an interest in the income withholding order to petition to alter, modify or rescind the order,
   including the victim, the defendant, or the district attorney for good cause (ALA. CODE §15-18-151). In Iowa, the court retains the
   power to issue further supplemental orders as additional victim losses are incurred (IOWA CODE § 910.3). Arizona provides that the
   defendant or those entitled to restitution may petition the court for an order modifying the payment schedule (ARIZ. REV. STAT. §13-
   804).
29 As examples, see ARIZ. REV. STAT. § 13-804; MONT. CODE ANN. § 46-18-246.
30 ARIZ. REV. STAT. § 13-810.




                                                                                                                                        11
The report and recommendations                                The Office for Victims of Crime is a                    To obtain a copy of the full report,
represent views from the field, and do                        component of the Office of Justice                      New Directions from the Field:
not necessarily reflect the views of the                      Programs, which includes the Bureau                     VictimsÕ Rights and Services for the
Department of Justice.                                        of Justice Assistance, the Bureau of                    21st Century, contact the OVC
                                                              Justice Statistics, the National Institute              Resource Center at 800-627-6872, or
                                                              of Justice, and the Office of Juvenile                  query askncjrs@ncjrs.org, or send in
                                                              Justice and Delinquency Prevention.                     the order form below.
                                                                                                                                                         August 1998
                                                                                                                                                        NCJ# 172825

                                                                              Order Form
       Yes! Please send me_____copies of the New Directions From the Field:                   Payment Options:
       Victims’Rights and Services for the 21st Century (NCJ170600).                             Check or money order, payable to the OVC Resource Center
       I understand copies are free but agree to pay postage and handling.
                                                                                                 Charge my:             MasterCard               VISA
       $6.00/copy for First Class Postage No. Copies ________ x $6.00 = ________
       $4.00/copy for Book Rate Postage No. Copies ________x $4.00 = ________                    Account No. __________________________ Exp. Date ___________________
       Mail to:
                                                                                                 Signature ____________________________________________________________
       Name: _____________________________________________________________________
       Organization:                                                                             Charge my government purchase order ( Please add $1.95
                                                                                                 processing fee for purchase orders.)
       Address:
                                                                                                 Account No. _____________________________________________
                                                         _________________
       City, State: __________________________ Zip Code _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
       Please cut out this order form, insert in an envelope, and mail to:                       Deduct these items from my National Criminal Justice
                                                                                                 Reference Service (NCJRS) Deposit Account
              OVC Resource Center
              Department F. Box 6000
                                                                                                 Account No. _____________________________________________
              Rockville, MD 20849-6000




U.S. Department of Justice
Office of Justice Programs                                                                                                                    BULK RATE
                                                                                                                                          POSTAGE & FEES PAID
Office for Victims of Crime                                                                                                                     DOJ/OVC
                                                                                                                                             Permit No. G-91
Washington, D.C. 20531

Official Business
Penalty for Private Use, $300

				
DOCUMENT INFO
Description: OVC,�August 1998,�NCJ 172825. (12 pages).