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Chapter 5 Financial Assistance for Victims of Crime

This section provides a historical and legislative framework for the remedy of restitution in our criminal and juvenile justice systems today. The crucial importance of restitution as a remedy for crime victims is examined as are the multiple purposes served by successful management and collection of restitution. Also discussed are the roles played by virtually all criminal justice and juvenile justice agencies in the restitution process, and how the coordination and cooperation among such agencies affects overall success in any restitution program. Specific information concerning types of victim losses covered by restitution and the kinds of documentation required from victims is provided. Additional policies and procedures integral to sound restitution management are also discussed. Finally, promising practices in restitution programs around the country are highlighted.

Upon completion of this section, students will understand the following concepts:

• Historical underpinnings of restitution within the criminal and juvenile justice systems.

• Key legislation in securing the right of restitution for victims of crime.

• The importance of restitution as a remedy for victims of crime and the multiple purposes restitution serves.

• Barriers that undermine the process of restitution.

• The importance of establishing restitution as a jurisdictional priority.

• Roles of individual criminal and juvenile justice agencies in the successful management of restitution.

• Types of losses for which restitution can be ordered and corresponding necessary documentation.

• Practical tasks for successful restitution management and collection.

• Promising practices that contribute to the success of a restitution program.

• During 1997, losses estimated at nearly $500 million were attributed to robberies. The value of property stolen averaged $995 per robbery, up from $921 in 1996. Average dollar losses in 1997 ranged from $576 taken during robberies of convenience stores to $4,802 per bank robbery (FBI 1998).

• The dollar value of property stolen in connection with property crimes in 1997 was estimated at over $15.6 billion. The average loss per offense in 1997 was $1,311, slightly more than the 1996 figure of $1,266. In 1997, law enforcement agencies nationwide reported a 37% recovery rate for dollar losses in connection with stolen property (Ibid., 7, 38).

• Based on information from 11,461 law enforcement agencies, nearly 81,753 arson offenses were reported in 1997. The average dollar loss of property damaged due to reported arsons was $11,294. The overall average loss for all types of structures was $19,804 (Ibid., 56).

• During 1997, the estimated value of motor vehicles stolen nationwide was more than $7 billion. The average value per vehicle at the time of theft was $5,416. In relating the value of vehicles stolen to those recovered, the recovery rate for 1997 was 67% (Ibid., 52).

• Personal crime is estimated to cost $105 billion annually in medical costs, lost earnings, and public program costs related to victim assistance. When pain, suffering, and the reduced quality of life are assessed, the costs increase to an estimated $450 billion annually. Violent crime results in lost wages equivalent to 1% of American earnings (Miller, Cohen, and Wiersema 1996).

• Violent crime causes 3% of U.S. medical spending and 14% of injury-related medical spending (U.S. News and World Report 1996).

• Insurers pay $45 billion annually due to crime--roughly $265 per American adult. The U.S. government pays $8 billion annually for restorative and emergency services to victims, plus perhaps one-fourth of the $11 billion in health insurance payments (Ibid.).

• Direct costs of alcohol-related crashes are estimated at $45 billion yearly. Alcohol-related crashes are estimated to cause an additional $70.5 billion lost in quality of life (Miller and Blincoe 1994).

Restitution is a fundamental right of crime victims. Its importance for victims with respect to financial as well as psychological recovery from the aftermath of crime cannot be overestimated. Unfortunately, in many jurisdictions, restitution can be one of the most difficult rights to enforce. Criminal and juvenile justice professionals, crime victims and victim service providers, and offenders and their advocates all share frustration about how restitution is ordered, collected, distributed, and monitored. While victims expect, very reasonably, that an order of restitution will be honored and collected upon, many justice system officials, adhering to the old saying, "you can't squeeze blood from a turnip," believe their program resources are better spent on other endeavors.

No single jurisdiction in the United States can claim to have a completely successful restitution program, if rates of collection, victim satisfaction, and interagency collaboration are to be considered measures of "success." This chapter, however, will show how many local and state agencies have developed innovative approaches to restitution that increase collections, collaboration, and victim satisfaction. Note: Portions of this chapter are excerpted from

"Victim Restitution" by Anne Seymour from Promising Practices and Strategies for Victim Services in Corrections, published in 1997 by the National Center for Victims of Crime.

HISTORICAL OVERVIEW

Ancient civilizations sought to formalize the process of restitution as a means for compensating victims, settling disputes, and controlling escalation of retributive violence. The Code of Hammurabi (1700 B.C.), Mosaic Law (about 1688 B.C.), and Roman Law contained elaborate provisions regarding compensation for specific property and personal injury crimes. Restitution in these legal codes was designed to compensate the victim and establish a lasting settlement between the parties (Karmen 1990).

By 600 A.D., the Anglo-Saxons in England had developed an intricate code proscribing restitution for individual victims. By making restitution to the victim and paying an additional fine to the king, the offender was allowed to "buy back the peace" (Hudson and Gallaway 1981). As time went on, the state took on an increasingly greater responsibility for the prosecution of crimes that had previously been treated as private matters. By the Middle Ages, the state had assumed the role of victim in the majority of crimes, and a system of fines and forfeiture laws eventually superseded the role of victim restitution in criminal proceedings. Gradually, the practice of restitution declined.

In early America, crimes were considered acts against individuals, and citizens could "buy" the services of sheriffs, investigators, and prosecutors for the purpose of prosecuting crimes on their behalf (Karmen 1990). Eventually the clear advantages to and potential for misuse by wealthy plaintiffs contributed to the establishment of public prosecutors. A distinction was drawn between criminal and civil law: crimes were considered acts against the state; torts were civil violations against individuals and could be redressed only through the civil system. Restitution became less important as the state pursued punitive justice.

A resurgence of interest in restitution began in the U.S. in the 1930s with the establishment of penal laws permitting suspended sentences and probation. As the victims' rights movement has gained increasing momentum over the last three decades, restitution has once again been recognized as a critical tool for victims recovering from the financial and psychological impact of crime.

In this country, however, restitution operates within a criminal justice system in which the victim has, at best, occupied a secondary role. There is no formal recognition of the fact that the crime was committed against an individual who has suffered harm as a result. The criminal justice system is primarily designed to control crime through punishing the offender. The result for restitution is an "inherent tension that arises when efforts are made to use the criminal law, with its focus on vindication of society's interests in punishing offenders, to reimburse victims for the harm done them by specific offenders" (Harland and Rosen 1990).

SIGNIFICANT RESTITUTION LEGISLATION

Dissatisfaction with the justice system's management of restitution has risen dramatically over the last three decades. Alternatives to "business as usual" both within and without the criminal justice system have proliferated. Significant legislative reform efforts have contributed to a nationwide effort to strengthen victims' rights within the existing legal system.

In 1982, the President's Task Force on Victims of Crime recommended the routine imposition of restitution in criminal cases with a documented financial loss to victims. Passage of the 1982 Victim and Witness Protection Act, the first general federal victim restitution statute, required judges to order full restitution in a criminal case or state on the record their reasons for not doing so. The Victims' Rights and Restitution Act of 1990 (Title V of the Crime Control Act of 1990) created, in effect, a Federal Crime Victims' Bill of Rights which, among other things, mandates that federal officials "make their best efforts" to see that victims of crime are accorded the right of restitution.

In 1994, the Violence Against Women Act (part of the Violent Crime Control and Law Enforcement Act of 1994) identified particular crimes subject to mandatory restitution. Departing from the previous trend to permit the court to have discretion in ordering restitution, the 1994 Crime Act states very clearly that convictions for four types of crimes must include mandatory restitution as part of an offender's punishment:

• Sex crimes.

• Sexual exploitation and other abuses of children.

• Telemarketing fraud.

• Domestic violence.

The Act also lists expenses for which victim restitution is required:

• Lost income.

• Necessary child care.

• Transportation.

• Other expenses related to participation in the investigation or prosecution of the offense.

• Attendance at proceedings related to the offense.

Most recently, the Mandatory Victims Restitution Act (Title II of the Antiterrorism and Effective Death Penalty Act of 1996) requires federal judges to order full restitution from offenders who have been convicted or pled guilty to specific charges:

• Fraud.

• Property crimes.

• Consumer product tampering.

• Drug crimes.

Crime Victims' Bills of Rights have been enacted in all states, approximately half of which provide for mandatory restitution unless compelling reasons to the contrary are stated on the record. More importantly, a total of thirty-one states have passed victims' rights constitutional amendments--at least ten of which provide for mandatory restitution. Since April 1996, the U.S. Congress has had before it several versions of a federal constitutional amendment for crime victims. The latest version, Senate Joint Resolution 3, was introduced by Senator Jon Kyl on January 19, 1999, and is currently pending before the 106th Congress. If enacted, the federal amendment would provide victims with a constitutional right to an order of full restitution from offenders.

Enforcement of restitution. To ensure enforcement of restitution orders, the Crime Act and 1995 Attorney General Guidelines specify that U.S. Attorneys must enforce the restitution order "by all available means."

The Crime Act provided several mechanisms to enforce restitution payments including the following:

• To reinforce the payment of restitution, the Crime Act requires that all benefits provided to the defendant by a federal agency must be immediately suspended until the defendant makes a "good faith" effort to pay restitution.

• The order may also be enforced by the victim in the same manner as a civil judgment.

• Compliance with a restitution order was established as a condition of probation or supervised release. The AG Guidelines specify that compliance with restitution orders shall be followed. If an offender fails to comply, the court, upon a hearing, may revoke the probation or term of supervised release, modify the terms and conditions of probation or release, or hold the offender in contempt.

Finally, the Crime Act reinforced restitution payments by amending the federal Bankruptcy Code to prevent defendants who owe restitution from discharging their liability for payments by filing bankruptcy. The Act states that a debt for restitution included as a sentence, on the debtor's conviction of a crime, would not be discharged in a Chapter 13 bankruptcy filing. The Act also added a new provision in the Bankruptcy Code that addresses drunk driving debts, stating that such debts are not dischargeable under Chapter 7, 11, and 12 proceedings.

Again, the 1995 AG Guidelines underscored restitution rights by stating:

Federal prosecutors shall advocate fully the rights of victims, including child victims, on the issue of restitution.

There is no doubt that restitution is a strongly supported remedy for victims of crime. Victims and victim advocates embrace restitution as a means for the recovery of some measure of economic and psychological wholeness, and also for the satisfaction provided when a full order of restitution reflects the extent of financial losses suffered. Corrections officials often view restitution as an alternative sanction that can alleviate prison overcrowding and as a solution to insufficient funding. Prosecutors support its use as a remedy for victims and as an effective tool in plea bargaining or pre-trial diversion programs. Judges who support the imposition of restitution may value its potential as a rehabilitative tool for offenders and an economic benefit for victims and society. Restitution can also be an effective and nonpartisan means for legislators to support victims' rights.

The importance of restitution for victims is extremely diverse and depends entirely on the individual circumstances of their victimization. So many factors are important to an in-depth understanding of why this remedy is so crucial and why justice systems around the country should take every step possible to improve their restitution programs. Consider the following:

• The lack of enforcement of restitution orders and the failure of justice agencies to enforce this basic victims' right can contribute to victims' frustration with their involvement in the justice process. Victim trauma--which can include fear, anxiety, confusion, anger, and feelings of loss of control--can be compounded when restitution is not paid and offenders are not held directly accountable for their actions.

• In many cases, items that are stolen or destroyed hold great sentimental value for victims, such as an heirloom piece of jewelry or family photos in a stolen wallet. The cost of "replacing" such items does not come close to covering the victim's emotional devastation resulting from the loss.

• Losses that seem "minor" to justice officials can have devastating effects on victims. For example, a California man whose car was stolen had to walk miles to work to maintain his job. His level of anxiety, anger, and exhaustion directly resulting from this aspect of the crime detrimentally affected his work performance and caused significant stress in his relationship with his wife.

• For vulnerable victims, such as the elderly or victims with disabilities, the loss of a television set or stereo that was stolen in a burglary can also be the loss of their only connection to the outside world.

• For some victims, the financial compensation provided by restitution is secondary to holding offenders accountable and reminding them of the damage and irreparable loss they have inflicted on innocent citizens. Many judges are beginning to consider this important factor in their sentencing. For example, a Mississippi man convicted in 1995 of vehicular manslaughter that killed four-year-old Whitney Lee was sentenced to a twenty-year prison term. In addition, Judge John Whitfield of the Harrison County Circuit Court in Gulfport ordered the convicted offender to pay a $520 restitution fine, in weekly installments of $1.00, to the family of the victim. The court-ordered fine, which will take ten years to pay, requires the offender to write in the memorandum space on every check "for the death of your daughter Whitney." While victim and activist Ann Lee has not cashed any of the checks, she expresses satisfaction that the man who killed her daughter has to be reminded of his actions once a week.

• Sometimes, the payment of restitution is the only reliable measure of victim satisfaction with the criminal or juvenile justice system, particularly in cases that are "fast tracked" by plea bargains or diversion. The only point of contact some victims have with the justice system is their involvement in restitution procedures; as such, victims' entire opinions of their involvement in the justice system can hinge on whether or not restitution orders are fulfilled.

Just as restitution is many things to many different victims of crime, so too, it serves a multitude of purposes in other ways:

• Victims suffer considerable monetary losses as a result of crime, many of which are not recoverable through insurance, victim compensation funds, or other forms of financial recovery.

• Offender accountability must incorporate measures to directly reimburse victims for their financial losses related to the criminal or delinquent act.

• Victim compensation programs cannot begin to fulfill the demands for financial recovery from victims but can be augmented by restitution payments to their funds.

• When restitution orders are not enforced and collected, it is ultimately America's victims and taxpayers who bear the burden of financial responsibility that should belong to offenders.

• The fulfillment of restitution obligations comprises a tenet of restorative justice that encompasses efforts among offenders, victims, and communities to attempt to repair the harm caused by crime.

• Restitution payments are a necessary and important reminder to offenders about the direct harm they have caused to victims and to their community.

• While restitution cannot begin to fully compensate for the harm victims endure, it is a "good faith" effort by offenders to "right their wrong."

Furthermore, restitution is a strong measure of the effectiveness of America's criminal and juvenile justice systems. When citizens assess whether or not the justice systems are accomplishing their mission, restitution is an important evaluation criterion. As such, not only should offenders be accountable for victim restitution; our justice systems should be held equally accountable for the enforcement of restitution orders.

A number of barriers exist that directly influence a jurisdiction's ability to manage successful restitution programs:

• The belief among some justice professionals that restitution is simply uncollectible.

• The feeling that probation and parole officers are not collection agents.

• State laws that mandate restitution program requirements, but fail to provide adequate funding for agencies to fulfill such mandates.

• Restitution orders are often not first in the priority of court-ordered payments, and follow behind court costs, fines, costs of salaries for justice officials, costs of incarceration, and other financial obligations.

• In jurisdictions where restitution is not mandatory, it is not consistently ordered as a condition of the sentence.

• Court orders of restitution do not always carry through the continuum of the justice system, i.e., diversion, probation, incarceration, and parole, and are therefore difficult to enforce.

• There is a lack of interagency agreements that stipulate who is responsible for monitoring, enforcing, collecting, and disbursing restitution.

• There is a lack of automation that simplifies the restitution monitoring and collection processes.

• Many parole boards do not have authority to order restitution as a condition of parole.

• Some crime victims and service providers express cynicism about efforts to collect restitution; their criticism of existing efforts can contribute to lowered employee morale among those responsible for monitoring restitution programs and payments.

In examining the obstacles or barriers that may be operating against optimal restitution management in a given jurisdiction, it is critical to understand that restitution, as a process, involves literally every agency within the criminal justice system and its successful collection depends upon every agency effectively doing its own job in a long line of interrelated tasks. Restitution involves the coordination of multiple tasks by numerous professionals in separate agencies and departments of the criminal justice system; it can be imposed at any stage from commission of the crime to the post-supervision period. Unless the successful management and collection of restitution is a jurisdictional priority, it is highly likely that at some point along the line, restitution will fall through the cracks.

Key parties to the process of restitution include victims, offenders, law enforcement officers, prosecutors and victim-witness personnel, defense counsel, the judiciary and other court personnel, probation officials, corrections officials, and parole boards. These parties, alone or in combination, must coordinate and accomplish the numerous tasks of criminal restitution, which consist mainly of the following:

• Apprehension of the offender.

• Determination of eligibility for restitution.

• Consultation with the victim to determine losses.

• Consideration of restitution in plea negotiations.

• Preparation of presentence investigation report.

• Assessment of defendant's ability to pay.

• Determination of payment schedule.

• Order of restitution.

• Monitoring and enforcement of restitution orders.

• Imposition of restitution conditions following period of incarceration.

• Application of sanctions for nonpayment.

• Collection of restitution payments.

• Amendment of payment schedules.

• Distribution of funds to victims.

• Imposition of available civil remedies (i.e., automatic civil judgment).

In view of the multiple parties and tasks involved in the process of restitution, the establishment of restitution as a jurisdictional priority is absolutely critical to its successful implementation as a remedy for crime victims.

RESTITUTION AS A JURISDICTIONAL PRIORITY

While the practices and procedures of restitution management vary greatly according to jurisdiction, the tasks and participants involved are essentially universal. The overall administration and management of criminal restitution can be broken down into four general categories:

1. Screening of cases to determine eligibility for restitution.

2. Specific determination of the restitution amount and conditions of payment.

3. The restitution order, including imposition of available civil remedies.

4. Collection and disbursement of restitution and monitoring of offender.

Restitution may in fact be eliminated as a remedy for victims because of decisions reached by key individuals at any one or more of the stages described above. The fact that so many agencies are necessarily involved in the restitution process makes the need for consistent priority-setting critical and makes the potential for failure in the event of conflicting priorities very real.

Even agencies with clearly defined objectives for restitution can be undermined at any point by a failure on the part of another agency to support the process. A prosecutor may consistently present documented evidence of substantial victim losses in eligible cases, but without adequate support from the judiciary or determined efforts on behalf of the collecting agency (typically, probation), the restitution may never reach the victim. Similarly, a probation department may develop superb procedures for effective and long-term collection of restitution, but without specific orders based on accurate information about victims' losses, their ability to assist in the collection effectively will be severely hampered. Studies show that compliance increases when restitution is brought to a significant level of priority, but that "outcome measures lag when restitution is handled as an add-on condition and is not a top agency concern. Programs that aggressively target restitution generate more successful performances and lower recidivism rates" (Doerner and Lab 1995).

THE COORDINATED INTERAGENCY APPROACH

The coordinated interagency approach developed by the Victims' Assistance Legal Organization (VALOR) is a common sense and systemic approach to solving some of the problems that have plagued restitution programs for decades. This approach addresses the multiparty, multitask elements of the restitution process by calling for the very deliberate elevation of restitution to a system-wide priority.

In the report, Restitution Reform: The Coordinated Interagency Approach, Burnley and Murray (1997) outline the six essential goals of the coordinated interagency approach to restitution management:

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

Although the effects of criminal activity can be far-reaching, it is essential that all key players in the criminal justice system keep in mind that the most direct damages and consequences are borne by the victim of the crime. The payment of restitution is a very basic reminder of this fact. Victims occupy a crucial role at each stage of the process of restitution management and they must not only be acknowledged by the criminal justice system but kept in the center of the criminal justice process.

Effective communication and cooperation. Effective communication and coordination among criminal justice agencies and personnel are crucial to successful restitution management; lack of such communication affects every aspect of the process. It is essential that shared information about the restitution process and decision making throughout that process be a routine component of any restitution program.

Efforts to improve restitution management will be severely hampered without the establishment of regular and effective channels of communication. The achievement of this objective lays the groundwork for the remaining goals. As noted by the Administrative Office of the U.S. Courts in its publication on improving restitution collection, "teamwork is the answer" (AOUSC 1992)

Clear delineation of restitution roles. Since restitution involves so many tasks, it is essential that agency roles be clearly defined and acknowledged. The lack of such clarity can lead to the duplication of services and/or failure to provide certain services at all. One study revealed the following:

. . . it was not unusual at all for prosecuting attorneys, victim advocates and probation officers all to prepare a Victim Impact Statement and to monitor, collect and disburse restitution payments. Not only does this result in poor coordination, but it exacerbates victims' second class status in the criminal justice system. If no single agency has primary responsibility to seek and monitor restitution payments to victims, no one agency can be held responsible. Once again, the victim falls through the cracks (Shapiro 1990).

Obviously, such duplication of effort is not only unnecessary, but costly, cumbersome, and counterproductive. Conversely, the failure of any one agency to take responsibility for a particular task may result in it being addressed too late in the process to be effective. Neither the victim nor justice is served when the system fails to define the roles involved in restitution sufficiently and to assign them in the most efficient and effective manner.

Streamlining restitution tasks. Restitution tasks should be viewed with a keen eye towards eliminating unnecessary steps and duplication of efforts. The overlapping of restitution tasks, such as preparing the victim impact statement or notifying victims of case developments, is not only a waste of jurisdictional resources, but also harmful to the overall efficiency of the restitution process. It can undermine confidence in the fairness and effectiveness of the criminal justice system. In the same way, when a task is not done because of a lack of coordination, the greatest potential failure of restitution is realized--the failure to provide a remedy that victims have a right to expect.

Effective streamlining and coordination also require the assignment of each task to the agency capable of performing it most efficiently. At times, this may require rethinking of procedures or reallocation of resources; for example, the physical collection of restitution payments from offenders is a task that may be assigned to a number of potential agencies but is most appropriate for that agency specifically equipped to handle financial duties. In a majority of jurisdictions, this agency is the Clerk of Court; however, many jurisdictions provide for specialized collection procedures within the department of probation or within some other criminal justice agency via the establishment of a restitution clerk with the necessary technological resources to track payments and disbursements.

Routine information flow. The establishment of a routine flow of restitution information is closely related to the goal of effective communication and coordination among and between criminal justice agencies. This involves both substantive and procedural information about all restitution cases as they progress through the system as well as data generated from statistics on the status of restitution accounts. It is extremely important for each criminal justice agency to be aware of any developments, changes, problems, etc., that have occurred regarding other agency restitution responsibilities. For example, victim-witness personnel or the agency responsible for routine communication with victims need current information about defaults so that victims can be informed in a timely manner about the resulting effect on payment. Similarly, officers of the Court need to be notified of defaults so that they can respond appropriately.

In any bureaucracy, ready access to reliable information is essential. A critical component of this goal is the allocation of sufficient resources to support the routine gathering and distribution of information.

Participant involvement and accountability. To be accountable, each criminal justice agency and professional must be willing to take responsibility for their portion of the restitution process. Criminal justice practitioners must be accountable to one another, the system as a whole, the community, and the individual victim. As an agency head in Alexandria, Virginia put it, "if one agency doesn't do its job, it just won't work."

The goals of participant involvement and accountability are essential to the overall goals of the coordinated interagency approach. Restitution is about taking responsibility--on every level. Key to the establishment of such responsibility is the recognition of the interdependence of all the components of the criminal justice system. The coordinated interagency approach provides a climate in which acceptance of responsibility and accountability by all participants can be realistically achieved.

The establishment of restitution as a jurisdictional priority necessarily includes a sound and comprehensive approach to the tasks involved in the management and collection of restitution. Victims must be notified of their right to receive restitution as early in the criminal justice process as possible and must be supported throughout the process in achieving a fair order of restitution that is closely monitored. An accurate and detailed assessment of the extent of the victim's injuries and losses is critical to a fair order of restitution. Many victims, especially those who suffer emotional trauma or physical injuries as a result of a crime, may have difficulty providing the information and documentation necessary to develop appropriate restitution orders.

Although documentation of loss is central to the task of restitution, whether it occurs and what is done with the information provided is affected by tasks performed at all stages of the criminal justice process. Before looking at documentation of loss in detail, the following jurisdictional approach to the assessment, ordering, collecting, disbursing, and monitoring of restitution is provided as a framework for consideration in adopting a comprehensive and victim-oriented approach to the management and collection of restitution.

LAW ENFORCEMENT

• When a victim reports a crime, the investigating officer provides information--verbally and in writing (in the primary language of the victim)--about the victim's right to restitution if an arrest is made that results in a conviction.

• The responding officer also provides information about victim compensation and other financial remedies available to the victim (such as state-sponsored restitution funds), including written information about program requirements and restrictions. These resources are particularly important for victims whose cases do not result in an arrest. It is important to note that many victim compensation funds are partially supported by restitution payments from offenders.

• The responding officer informs the victim that if an arrest is made, and if their case is referred for prosecution, somebody from the prosecutor's office will contact him/her regarding relevant restitution rights and related requirements. The officer also provides his/her name, badge number, and telephone number in case the victim has questions or needs further information or a referral for victim support or assistance.

PROSECUTORS

• A prosecutor, prosecution-based victim-witness professional, or other designated personnel contacts the victim if the case results in a grand jury indictment or juvenile court hearing. The victim is advised of his/her rights, including any restitution rights that may apply to the case.

• At this point, victims may be advised, verbally and/or in writing, about the information that they need to provide concerning their immediate and projected losses for restitution purposes. Standardized letters and forms should outline this information and the documentation required; immediate and long-term losses are described in the "Documenting Losses" section of this text.

• Prior to negotiating any plea agreement, the prosecutor should consult with the victim. While consultation in no way guarantees that the victim's wishes regarding his/her case will be fully granted, it does provide an opportunity to discuss restitution as a mandatory condition of any plea bargain.

• Whether cases are adjudicated through plea bargains or trials, victims in nearly every jurisdiction in the United States have the right to submit a victim impact statement (VIS). Restitution is a key element in victim impact statements and should take into consideration the victim's out-of-pocket and projected expenses that result from the crime. Numerous justice agencies share responsibility for processing VIS at different points throughout the justice process, including prosecutors, the judiciary, probation, parole, and corrections. Prosecutors should make victims aware of their right to submit a VIS and provide assistance or a referral to help them complete their VIS. This often requires close collaboration with probation officials.

• Prosecutors should request victim restitution as the first priority in court-ordered financial obligations.

• In some jurisdictions, prosecutor's offices have or share responsibility for assessing an offender's ability to pay restitution. Due diligence must be practiced that identifies offenders' current and projected earning capabilities. A Wyoming prosecutor sets a good example by visiting offenders' homes to see if they have cable television, smoke cigarettes, and have gun racks in their pickup trucks for hunting. The premise is that if offenders can afford these luxuries, they can also afford to pay restitution to their victims.

THE JUDICIARY AND COURTS

• Judges should order restitution of all sentences in criminal and juvenile court, including diversion, probation, and incarceration/detention.

• An offender's inability to pay restitution at the time of sentencing should not be construed as reasonable cause to refuse to order restitution. Ability to pay should be considered for purposes of the payment schedule only, not amount ordered. Current and projected earnings for the future must be considered.

• If a judge fails to order restitution, he/she should state for the court record his/her reason for doing so and provide this explanation directly to the victim.

• The court should request and consider victim impact statements and presentence investigation reports that contain documentation relevant to restitution from probation officials.

• In plea bargain cases, or in other situations where the extent of loss is not known at the time of sentencing (e.g., mental health services) judges can impose "to be determined" restitution orders so that the victim's financial losses can be adequately and fully documented for the court.

• Judges should consider the full range of remedies (highlighted throughout this text) available to both the court and to victims in the event that an offender fails to comply with the restitution order. The court should provide written resources to victims that offer an overview of this vital information.

• The court (or in some jurisdictions, the prosecutor or probation office) should notify victims of the date of the sentencing hearing and encourage their attendance and participation.

• The court can order that bail money paid by the offender be directly applied to victim restitution obligations instead of being returned to the offender.

• When cases are referred back to court for an offender's failure to fulfill his/her restitution requirements, the judge should seek input from the victim and consider the full range of remedies the court can take to facilitate offenders' compliance with its order.
• In cases resulting in incarceration or detention, documentation of restitution obligations should be included in the offender's case file for review by paroling authorities.

PROBATION

• Probation officers should practice due diligence in locating victims to obtain information relevant to restitution.

• Presentence investigation reports and/or victim impact statements prepared by probation officers for court review should include documentation of the victim's out-of-pocket and projected financial losses, along with any input or recommendations the victim may have regarding restitution.

• If victims request mediation (also called "victim/offender dialogue") to help establish restitution recommendations for the court, probation agencies should work with local victim service organizations to plan and implement victim-sensitive mediation programs.

• A restitution payment schedule should be established and provided to victims along with written information on remedies victims and/or the court or probation agency can take if offenders fail to pay restitution.

• Maintenance of restitution payments to victims should be a top priority for offender supervision. This emphasis should be made very clear to probationers.

• Victims should be provided with contact information for their offender's probation officer (or the court) in order to keep system officials apprised of an offender's failure to pay restitution or delay in paying restitution.

CORRECTIONS

• Adult corrections and juvenile detention agencies should support the passage of state legislation and/or agency policies that allow the agency to deduct a percentage of offenders' wages and trust account funds to be applied to victim restitution or to a state restitution fund.

• Accurate records of court orders for restitution should be maintained in the offender's case file, utilized for collecting restitution, and provided to paroling authorities for consideration at any release hearings.

PAROLE BOARDS

• Court-ordered restitution should be reaffirmed by parole boards as a mandatory condition of parole release and supervision.

• Paroling authorities should also have (or seek) the authority to order restitution for parolees under their agency's supervision.

• Documentation of the victim's losses at the time of sentencing should be augmented by current information that more fully addresses victims' out-of-pocket expenses at the time of parole consideration hearings. The paroling authority should seek input from victims, either through victim impact statements or pre-parole release investigation reports, regarding their restitution needs. Current VIS can be compared to VIS submitted by the victim at the time of sentencing to help measure the victim's life reconstruction.

• Payment of restitution must be a mandatory condition of parole. Offenders who fail to fulfill their financial obligations to victims must understand that such negligence could result in revocation or extension of parole or other remedies authorized by state law.

• Parolees should not be allowed to transfer to another state unless they have fulfilled their victim restitution obligations.

COORDINATION AND COLLABORATION IN ACTION

Changes to the management of restitution in California presents a compelling example of the impact of jurisdictional coordination and the establishment of restitution as a system-wide priority. During the last six years, fifteen statutory changes have been made to improve and/or attempt to streamline the assessment and collection of restitution. Contracts have been (continue to be) established with every county district attorney's office to fund restitution liaison positions to act closely with victims and the courts in the imposition of restitution obligations. Additionally, wage garnishment and trust account intercept programs have been established within the penal institutions. On-site visits, victim services manuals for prosecutors, restitution guidelines, victims' financial options brochures, and training programs for prosecutors and probation officers are essential components of the state's restitution program. The final and perhaps most critical component is the development of an automated restitution tracking system to ensure offenders are held accountable for victim losses and the restitution statutes are appropriately applied (Soderland 1999).

To ensure accurate and complete restitution orders, it is necessary for victims 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 of the following considerations for guidelines should be provided in writing to victims:

• 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 and 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.

• Repairing damage following property crimes.

• Attending or participating in court or parole proceedings.

• Attending 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 obtain expert testimony regarding an estimate of 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 and related expenses. Such costs can include the following:

• 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.

ASSESSING THE OFFENDER'S ABILITY TO PAY

The "other side of the coin" of victim documentation of financial losses is conducting an assessment of the offender's ability to pay in order to recommend an appropriate restitution payment plan. The responsible justice agency should evaluate the offender's current and future financial status in making recommendations about both the amount of restitution and the payment schedule.

Issues for consideration include the following:

• Current employment status, including salary, benefits, and pension plans.

• Projections on future employability that assess the type of job and remuneration offenders might secure.

• Assets not essential to the offender's quality of life, including savings accounts; investments such as stocks, bonds and mutual funds; income from investment properties, but excluding home or automobile ownership.

• Potential contingency funds, such as state and federal income tax returns, winnings from lotteries, or inheritances.

In Summit County, Colorado, the Fifth Judicial District Probation Department trains its officers to examine the entire financial situation of offenders when looking at issues concerning their ability to pay restitution. For example, if an offender owes restitution and owns expensive, nonnecessity items (i.e., television, compact disc player), then the probation officer can ask the judge to order the offender to sell the possessions to pay restitution to the victim(s).

At times, employing innovative and more controlled methods for collecting restitution when offenders fail to pay becomes necessary. Efforts implemented by a variety of agencies and jurisdictions include the following:

• Civil remedies.

• Forfeiture of bond money for restitution obligations.

• Collection of restitution while offenders are institutionalized or placed on parole.

• Providing incentives for incarcerated offenders to pay restitution.

• Acceptance of credit card payments.

• Converting restitution orders to community service.

• Extending the term of community supervision until the offender fulfills his/her restitution obligations.

• Residential restitution centers.

• Use of private collection agencies.

CIVIL REMEDIES

According to the National Center for Victims of Crime (NCVC), forty-one states have laws that provide civil remedies for victims whose offenders' sentences include restitution orders (NCVC 1999). In most of these states, once there has been a default in payment, a civil judgment can be enforced by placing a lien on the offender's real property, garnishing his/her wages, attaching his/her assets or wages, or freezing his/her bank accounts. The attachment of deposited funds ("freezing") is usually time-limited from the initial restitution order (such as twenty-four months) unless it is extended by the court or paroling authority.

The Maricopa County Probation Department in Phoenix, Arizona, requires probationers enrolled in the intensive supervision program and the work furlough program to endorse their paychecks and sign them over to the probation department. Another check is then issued to the offender, minus the payment toward victim restitution. Probationers enrolled in the day reporting program also can be subject to this requirement.

In Summit County, Colorado, offenders who owe more than $2,000 in restitution are required, as a condition of probation, to submit their income tax returns to their probation officers. If the offender is entitled to a tax refund, the probation officer can require the offender to pay that amount toward his/her restitution obligation.

Laws in several states provide for specific measures to enforce restitution orders as civil judgments:

• Delaware provides for the assignment of specified periodic sums to be designated for victim restitution such as up to one-third of an offender's total earnings.

• Minnesota and Washington provide for the freezing of bank accounts.

• Montana and Oklahoma courts may order the forfeiture, seizure, and/or sale of offenders' assets.

FORFEITURE OF BOND MONEY

In Westchester County, New York, when a "violation of probation" is filed as a result of failure to pay restitution, the probation officer can request bail. The officer then suggests that the court set bail in the amount of the owed restitution, if the amount is not "unreasonable." In the accompanying report to the court, the court is advised that if the violation is sustained and the probationer is willing to assign the bail money as payment of restitution, the probation department would recommend that probation be continued, or, in some cases, terminated. The report recommends alternative sentences for probationers who will not assign bail money. The available alternatives include an upward modification of the order to include a graduated sanction such as "shock time," community service, or possible electronic monitoring. In some instances, a recommendation of revocation and a sentence of incarceration are made.

RESTITUTION COLLECTION IN INSTITUTIONS

The California Department of Corrections (CDC) has implemented an Inmate Restitution Fine Collections System supported by state law that enables the department to deduct 20 percent of inmate wages and other trust account deposits to pay court-ordered restitution. This amount is forwarded to the State Board of Control Restitution Fund. This fund provides reimbursement to qualified victims for expenses incurred as a result of the crime committed against them, i.e., medical costs, burial costs, and counseling. Since its inception in November 1992, this system has resulted in the collection of over $9 million from inmate wages and trust account deposits. CDC's Victim Services Program staff also facilitates voluntary restitution payments made by inmates and parolees, as well as monies derived from annual inmate fund-raisers.

PROVIDING INCENTIVES FOR INCARCERATED OFFENDERS

Correctional agencies can encourage inmates' participation in fulfilling their restitution obligations and increase collections by offering the following incentives:

• Increased privileges at the prison commissary.

• Special visitation privileges.

• Special menu privileges.

• Priority enrollment in popular education programs sponsored by the prison.

Failure or refusal to participate in the department's victim restitution program could also result in the loss of privileges.

ACCEPTANCE OF CREDIT CARDS FOR PAYMENT

The Court Administrators Office in Stearns County, Minnesota, accepts credit card payments for court-ordered fines and fees, including restitution. To begin accepting that form of payment, the Court Administrators Office obtained permission from the local judge and the county commissioners. Arrangements were made with a local bank, and the office now accepts MasterCard, Visa, and Discover Card. The Court Administrators Office absorbs the user fee charged by the bank for use of credit cards, which is generally covered by the interest earned on the account. Once an offender offers a credit card for payment of restitution, and it is authorized by the bank, it is an immediate "capture" of funds for the Court Administrators Office.

CONVERTING RESTITUTION ORDERS TO COMMUNITY SERVICE

In extreme cases where offenders are truly indigent and unable to pay restitution, another option is to have offenders perform community service hours in lieu of paying restitution. Victims can have input into the type and location of the community service performed. Offenders may perform direct services for the victim, for a favorite charity of the victim, or for one of the agency's regularly authorized public work projects that the victim selects.

EXTENDING CONDITIONS OF COMMUNITY SUPERVISION

In Washington, offenders who fail to comply with their restitution orders can have their sentence of community supervision extended for up to ten years. This "incentive" monitored by the Department of Corrections often provides impetus for offenders to fulfill their restitution requirements in a more timely manner.

RESIDENTIAL RESTITUTION CENTERS

Residential restitution centers are being used in various areas of the country to enforce the payment of restitution by offenders. Generally, offenders on probation may be assigned to a restitution center where they will live, work, and turn over the full amount of their pay to the agency managing the center. A portion of these funds is returned to the offender and the remainder is used to pay restitution to victims and, in some cases, other court-ordered payments.

USE OF PRIVATE COLLECTION AGENCIES

Some states authorize justice agencies to utilize the services of private collection agencies to secure restitution payments. It is important to note that this approach incorporates a percentage-based "fee for service" such as 10 percent of the restitution collected, which equates to a reduction in the amount of restitution a victim will receive. However, many justice agencies and victims feel that 90 percent of a restitution order is better than nothing at all.

Justice agencies must contract for the services of private collection agencies and establish clear policies that provide guidelines for acceptable collection tactics. Since private collection agencies have experience, automated systems, and employees trained to track down delinquent debtors, this approach can contribute significantly to increased collections of restitution payments.

Agencies responsible for enforcing restitution should also enforce established sanctions for offenders' willful failure to pay and ensure that offenders under their supervision are aware of the range of possible sanctions. Such sanctions can be lifted in extreme cases where an offender can demonstrate hardships that prevent the maintenance of timely restitution payments; however, in such cases, restitution payment schedules should be adjusted and/or extended, not abandoned.

It is also important that victims understand their obligation to report nonpayment of court- and parole board-ordered restitution so that the appropriate justice system official(s) can assess the reasons for nonpayment and possibly consider sanctions for offenders in violation of official orders. Victims should also be provided the opportunity to have input into the type(s) of sanctions that might be imposed. In addition to the remedies noted above, such sanctions can also include the following:

• Public/community service employment (both paid and nonpaid).

• Intensive supervision.

• House arrest.

• Curfews.

• Electronic monitoring.

• Urinalysis.

• Revocation of supervision to incarceration (including minimum security institutions and work release programs).

The availability of resources for technological support and automation is one of the single most important components of successful restitution management. The past few years have seen significant advances in terms of computerization of probation departments and court clerk's offices in particular, but the need for allocation of such technological resources cannot be overestimated. Many restitution programs still operate with a handwritten card system for monitoring payments and disbursing checks to victims. Such a system is labor-intensive, time-consuming, and often ineffective in terms of its accuracy in tracking and monitoring restitution payments. Jurisdictions with effective restitution systems can generate accurate, regular data on restitution orders and receipts. This type of information is critical to effective monitoring and enforcement.

Automation can enhance the restitution process in the following ways:

• Reducing the amount of staff time needed to manage and collect restitution.

• Automatically generating letters of reminder or bills to offenders related to restitution and other court-ordered fees.

• Automatically generating letters to victims informing them about the restitution process, the status of the payments owed to them, and other available services.

• Maintaining accurate records of the location of victims and offenders and the status of restitution orders.

• Increasing the ability of probation and parole officers, supervisors, and department administrators to access information on the status of an individual offender or of a group of offenders (i.e., all offenders supervised by a particular agent or unit or all offenders ordered to pay restitution throughout the state).

• Enabling agencies to prepare statistical reports quickly and easily to analyze and report their progress or results (i.e., collection rates).

• Providing valuable data to evaluate the effectiveness of restitution programs.

The sufficient allocation of resources for automation is one of many individual factors, described herein, which contribute to successful restitution management and collection. One fact is clear: restitution must be identified as a clear priority across the entire spectrum of the jurisdictional justice system. A system-wide approach to restitution management, including streamlined and consistent goals, in conjunction with careful allocation and management of the restitution tasks outlined in this section, is vital to serving the needs of crime victims regarding the very fundamental and crucial right of restitution. In referring to staff training regarding restitution, Jim Sinclair, Assistant Director of the Department of Community Supervision and Corrections in Tarrant County, Texas, states:

. . . It is not so much focusing on collecting the money as your legal mandate or because it is an order of the court, but to get your staff to buy into the fact that for victims and survivors, restitution has an incredibly powerful symbolic value. Sometimes it is the only way that they have an inkling of hope that the offender is being held accountable (Sinclair 1999).

• The Florida Department of Corrections operates its Court-Ordered Payment System (COPS) to track and simplify the collection of court-ordered payments. This automated collection system is located on the DOC mainframe computer and linked to the offender's criminal history and supervision/inmate record. It provides payment information to all (155) probation offices in Florida, fifty-one major institutions, thirty-two community correctional centers, and forty-three road prisons, work camps, and forestry camps. Offenders bring in one form of guaranteed payment (i.e., money order) which is disbursed to victims and other payees according to the established payment schedules in COPS. Governmental checks are then disbursed to victims and other payees.

• In California, landmark omnibus restitution legislation, passed in 1995, established clear provisions for collecting restitution from parolees. Assembly Bill 817 (Chapter 313, Statutes of 1995):

- Allows the California Department of Corrections (CDC) to collect restitution fines from parolees.

- Allows CDC to collect restitution orders even if the parolee's victim received assistance from the state compensation fund.

- Clarifies that collection of a restitution order (which is paid directly to victims) takes precedence over collection of the restitution fine (which is deposited in the state's Restitution Fund).

- Requires that parolees satisfy their restitution fine obligations before being released to parole in another state.

- Allows CDC and the Board of Prison Terms to require, as a condition of parole, that a prisoner make payments on the outstanding restitution orders and restitution fines.

• The Department of Community Supervision and Corrections in Tarrant County, Texas, uses a national database to search for probation offenders as well as lost victims who are owed restitution. Over the course of a year, utilizing an office helper who worked two hours a week, they were able to locate victims who were owed an aggregate amount of approximately $200,000 in restitution. Tarrant County currently utilizes funds from a VOCA grant to finance a full-time position involving searching for lost victims. Tarrant County also strongly encourages the involvement of volunteers and victim advocates in its victim service programs.

• In California, courts are required by law to impose "to be determined" restitution orders if victims' losses are not fully assessed at the time of sentencing. Once victims' losses are determined, the case is returned to court to officially record the restitution order and establish a payment schedule. This innovative approach provides an important opportunity for offender financial accountability in cases where the only alternative is no restitution order at all.

• Also in California, state law provides that parents may be held liable for the criminal acts of their children for amounts up to $25,000. Additionally, juvenile offenders cannot be released from parole or request that their criminal record be expunged until such time as they have completed all restitution payments.

• In Minnesota, the Dakota County Community Corrections Department maintains a restitution fund that is used to pay victims of juvenile offenders. The juvenile offenders perform community service hours and receive minimum wage credit for the hours they work. The "money" youth earn is then taken from the restitution fund and paid directly to the victims.

Restitution Self-Examination

2. List three obstacles to the successful collection and management of restitution.

3. In addition to serving as a critical remedy for crime victims, list four other purposes that restitution serves.

4. Why is the establishment of restitution as a jurisdictional priority so important?

5. List five ways in which victims can document financial losses for purposes of restitution.

6. List five practical tasks critical to the success of any restitution program.

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