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Current Issues

Conflicting Directives

Many states have conflicting restitution statutes. A state may have one statute that mandates restitution in every criminal case and another that expressly leaves the ordering of restitution to the court’s discretion. States may give every victim the right to restitution “as provided by law” but fail to mandate that courts order restitution. In some states, a single statute contains conflicting provisions. For example, a Minnesota law states that every crime victim has the right to receive restitution as part of the disposition of a criminal charge or juvenile delinquency proceeding if the offender is convicted or found delinquent. The statute further provides that the court “shall grant or deny restitution or partial restitution and shall state on the record its reasons for its decision on restitution if information relating to restitution has been presented.”50 Other states have similar contradictions within their statutes. The Colorado Legislature addressed this issue in 1999 when it created a task force to develop a report on restitution and specifically charged the task force with identifying conflicting provisions in the law.51

Other Barriers to Restitution Orders

Despite progressively stronger restitution statutes, studies and anecdotal information suggest that crime victims are frequently not awarded restitution. In a 1996 study, less than half of the 1,300 crime victims surveyed reported that they were awarded restitution.52

As part of the same study, local criminal justice and victim service professionals were surveyed about their experiences with crime victims’ rights and asked to identify why courts often failed to order restitution. The most common reasons were a victim’s failure to request restitution, a victim’s failure to demonstrate loss, the inability to calculate a victim’s loss, the opinion that restitution was inappropriate in light of other penalties imposed (especially in cases where the defendant receives jail time), and a defendant’s inability to pay.53 Most of these reasons can be addressed in whole or in part by statute.

A Victim’s Failure To Request Restitution

One way to address a victim’s failure to request restitution is to strengthen the laws that require a victim to be notified of the right to request restitution. Victims are commonly informed of the availability of restitution at the time they receive general information about crime victims’ rights, either when the crime is reported or when the prosecutor files charges.54 Early notification of a victim’s right to request restitution gives the victim time to gather evidence to document losses. In some states, victims are informed of their right to request restitution again when they are notified of the sentencing hearing or asked to complete a victim impact statement.55

Other states simply place the burden of requesting restitution on the prosecutor.56 Wisconsin law requires the court to prompt the prosecutor: “The court, before imposing sentence or ordering probation, shall inquire of the district attorney regarding the amount of restitution, if any, that the victim claims.”57 Finally, a few states have avoided the issue of victims failing to request restitution by eliminating the need for such a request. In Arizona, for example, restitution is mandatory in every criminal case:58 “The fact that a victim does not request restitution does not change the court’s obligation to order it.”59

A Victim’s Failure To Demonstrate and a Court’s Inability To Calculate Loss

Unless they are given sufficient evidence regarding a victim’s financial loss and the degree to which the victim was harmed, courts are reluctant to enter an order of restitution. As a result, many states have adopted statutory procedures to gather information about a victim’s losses. Oregon requires the prosecutor to investigate and present evidence on the nature and amount of the victim’s damages before or at the time of sentencing unless the presentence report contained such information.60 Wisconsin, meanwhile, requires the prosecutor to request information about losses from the victim.61

Many states also require that detailed information about the victim’s losses be included in the presentence report.62 Georgia requires the victim impact statement to be attached to the file so that the judge or prosecutor can use it at any stage of the proceedings, including restitution consideration.63 Delaware and Oklahoma require the victim to submit a particular form describing losses in detail.64 Victims who seek restitution in South Carolina must submit an itemized list of all financial losses.65 Several states provide assistance to the crime victim in preparing such documentation. Oklahoma law states that “[e]very crime victim receiving the restitution claim form shall be provided assistance and direction to properly complete the form.”66

The Opinion That Restitution Was Inappropriate in Light of Other Penalties Imposed

Traditionally, laws provide for restitution as a condition of probation or suspended sentence. There was limited statutory authority to order both restitution and incarceration.67 This may be why many judges believe it is inappropriate to order restitution in cases in which a defendant is imprisoned as well. New laws requiring courts to consider restitution in every case may be a response to this judicial reluctance to issue restitution orders.

A Defendant’s Inability To Pay

One of the most common reasons for failing to order restitution has been a defendant’s inability to pay. As noted earlier, many states have addressed this problem by providing that the defendant’s financial circumstances are to be considered at the time the payment schedule is developed but not when the amount of restitution is set. The South Dakota statute states that even if the defendant is currently unable to pay restitution, a restitution plan must be presented that states the conditions under which the defendant will begin making restitution.68 Similarly, Idaho’s law states that the immediate inability of a defendant to pay is not a reason to not order restitution.69

Illinois courts have addressed this issue by ruling that restitution may be ordered regardless of the term of incarceration and a defendant’s financial resources. “The fact that [restitution] may never be collectible is of no importance,”70 according to one Illinois case. Meanwhile, proceedings in another Illinois case indicate that “[w]ith respect to defendants sentenced to lengthy prison terms, the fact of a term of imprisonment is simply one factor for a trial judge to consider when assessing a defendant’s postincarceration ability to pay for purposes of fashioning terms of the restitution order.”71

States have also acted to ensure that courts are presented with more complete information about a defendant’s financial status. Oklahoma’s law states that

The court shall order the offender to submit . . . such information as the court may direct and finds necessary to be disclosed for the purpose of ascertaining the type and manner of restitution to be ordered. . . . The willful failure or refusal of the offender to provide all or part of the requisite information prior to the sentencing, unless disclosure is deferred by the court, shall not deprive the court of the authority to set restitution or set the schedule of payment. The willful failure or refusal . . . shall constitute a waiver of any grounds to appeal or seek future amendment or alteration of the restitution order predicated on the undisclosed information.72

Such failure or refusal is also an act of contempt.73

In California, the defendant is required to file a disclosure identifying all assets, income, and liabilities. Failure to disclose this information may be considered an aggravating circumstance in sentencing and “a factor indicating that the interests of justice would not be served by admitting the defendant to probation . . . conditionally sentencing the defendant . . . [or] imposing less than the maximum fine and sentence.”74

New Mexico requires defendants to prepare a plan of restitution with the probation or parole officer, “and the court, before approving, disapproving or modifying the plan of restitution, shall consider the physical and mental health and condition of the defendant, his age, his education, his employment circumstances, his potential for employment and vocational training, his family circumstances, [and] his financial condition,” among other factors.75

Providing information about a defendant’s ability to pay restitution can give courts more confidence in ordering restitution. Perhaps more important, it helps to fashion a workable payment plan.

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Ordering Restitution to the Crime Victim, Legal Series Bulletin #6
November 2002
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