Promising Practices for the Order of Restitution

Chapter 5[1]

THE ORDER OF RESTITUTION

Without a comprehensive and accurate order of restitution, victims’ rights to restitution are essentially meaningless. Strong support from the judiciary is key and, in some jurisdictions, has made the difference between whether a restitution program works to its fullest capacity. Specific and accurate orders of restitution at the time of sentencing are crucial. In some cases, a lack of specificity in restitution orders may reflect a lack of judicial support for restitution, or it may be indicative of the unavailability of adequate loss information for consideration by the court at the time of sentencing. While many jurisdictions use the "to be determined" restitution order, leaving the particulars of the restitution order and even loss documentation to the monitoring agency, typically probation, it is more effective when the court orders the restitution and enters all relevant information into the court record.

PROMISING PRACTICES FOR THE ORDER OF RESTITUTION

Promising practices identified in this section address these elements of the restitution order:

Complete and accurate restitution information is available before the court at the time of sentencing.
Full restitution is ordered at the time of sentencing, if possible.
Standardized forms are used for presenting restitution information to the court.
Consideration is given to offenders’ ability to pay and payment schedules.
Incentives and payment conditions increase the likelihood of payment.
Criminal orders of restitution can be converted into civil judgments.

NEED FOR COMPLETE AND ACCURATE RESTITUTION INFORMATION

Clearly, the goal of having complete and accurate information before the court at the time of sentencing (or when a plea is entered) is inseparable from the recommendations espoused in the previous chapter regarding the role of the prosecution in documenting victim losses vis-a-vis restitution. In response to the survey question, "Is restitution information routinely gathered prior to sentencing?":

81% of adult program respondents indicated that it was routinely gathered; and
56% of juvenile program respondents indicated that it was routinely gathered.

This is good news for victims and indicative of the fact that a majority of jurisdictions, at least in this survey, are gathering restitution information prior to the sentencing phase. However, it should be noted that even in those jurisdictions that routinely gather restitution information prior to sentencing, it is frequently incomplete, partly due to frequent fast-tracking of criminal cases and the practical difficulties of assessing long-term losses, prior to sentencing. Figure 5a demonstrates the survey responses to the question of which criminal or juvenile justice agency is actually responsible for presenting the restitution information to the court.

As can be seen from the graph, the clear majority of respondents indicated that the prosecution is responsible for presenting such information to the court, followed by adult probation. In response to whether a written protocol (e.g., a restitution plan) is submitted to the court at the time of sentencing, only 34% of the respondents indicated that such a plan was used, and 49% responded that no written protocol was used (18% indicated that this factor was unknown). Use of a specific and comprehensive written form, such as a restitution plan, or an agreed order that is prepared for the court, is an essential tool for this stage of the restitution process.

In Alexandria, Virginia, staff members from the Commonwealth’s Attorney’s Victim Witness Assistance Program routinely contact victims when criminal charges are filed to obtain all pertinent information, including information regarding losses for which restitution may be ordered. Prior to sentencing, a Restitution Plan is completed, containing the following information: defendant name and social security number; victim name and address; criminal case number; total amount of restitution ordered; payment schedule; and date for payment. The Virginia Code actually mandates the use of the Restitution Plan, providing as follows:

Sec. 19.2-305.1(B). At or before the time of sentencing, the court shall receive and consider any plan for making restitution...the plan shall include the defendant’s home address, place of employment and address, social security number and bank information...

Types of payment that will be accepted for restitution are spelled out on the face of the plan, as is the mailing address for the Clerk of Court, to which all payments are directed. To protect the victim’s confidentiality, the restitution plan form is printed in a multicopy format, with all victim information redacted on the copies for defense counsel and defendant. Defendants are also strongly encouraged to make an initial payment at the time of sentencing. Exhibit 5a shows the Alexandria, Virginia Restitution Plan.

As seen in the above example, the use of standardized forms for the presentation of restitution information to the court is a very simple and straightforward way to streamline the processing of restitution information. In fact, interviews during the course of this project repeatedly illustrated the fact that even seriously underfunded jurisdictions are realizing that it does not necessarily take extra funding to make significant progress toward improving the likelihood of payment of restitution.

Straightforward Solutions to a Complex Problem

In some of the rural judicial districts in Arkansas, the success of restitution collection depends a great deal on the initiative and commitment of individuals in the participating agencies. Victim/Witness Assistance coordinators in district attorneys’ offices in Arkansas are filling in some of the gaps in the restitution collection process in their counties.

In Miller County, Arkansas (population 86,000) the Clerk in the Circuit Court collects restitution, but lacks a database that monitors the ordering and payment of restitution and therefore often lacks the information regarding to whom and where to send the collected monies. At the same time, victims frequently have difficulty accounting for all of their losses at the time of disposition so that the restitution ordered is “to be determined” and tends to remain so until long after the offender has been released from custody.

To assist victims in applying for restitution in a timely manner, Beth Kemp, the Victim/Witness Coordinator at the Miller County District Attorney’s Office developed a special questionnaire for victims that helps them determine what property may have been lost or damaged with special emphasis on items that are commonly overlooked. She makes every effort to see that an appropriate amount of restitution can be ordered for the victim at the time of sentencing. (B. Kemp, personal communication, October 25, 1999).

Ms. Kemp has also created a restitution report that she delivers to the Clerk of Courts at the time of sentencing to inform him of the recipient’s name, the amount owed, and the address where the check should be mailed. Having established the restitution report as a protocol within her office, she now finds that the clerk asks for the reports, has incorporated them into the procedure for monitoring restitution, and is thus improving the distribution of collected restitution in general.

In King County, Washington, the Adult Felony Victim Assistance Unit (VAU) of the Prosecutor’s Office is responsible for all information gathered regarding victim losses and restitution and, in most cases, prepares the order of restitution for submission to the judge. Once a defendant is found guilty or pleads guilty, restitution investigators for the VAU finalize the restitution information (which had earlier been gathered and entered into a county database), contact victims for any missing information, and prepare the proposed restitution order. On some occasions, particularly those involving third-party victims, such as insurance companies or financial institutions, the information may not be final at the time of sentencing and so the entire file is returned to the VAU until such time as all information is available and submitted. VAU tracks and monitors the loss information until it is complete. The full amount of restitution is regularly sought and ordered, including often overlooked expenses such as insurance premiums paid by victims on policies covering losses. For example, in the case where a victim’s stereo equipment, valued at $400, was stolen, restitution would be sought in the amount of $400 for the insurance company that reimbursed the victim, as well as $100 to compensate the victim for payment of the insurance deductible. (C. Hendrix, personal communication, November 1, 1999).

CONTENTS OF THE RESTITUTION ORDER

Again, the restitution order should be as comprehensive and complete as possible. However, the challenges facing the judiciary in the reasonable and effective ordering of restitution to victims of crime depends on many factors. Victim Restitution: A Priority for Justice, (APPA etc.) a recent study that analyzed restitution procedures within the courts nationwide, makes the following recommendations:

·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. Current and projected earnings for the future must be considered.

·If a judge fails to order restitution, he or she should state for the court record his or 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 from probation officials that contain documentation relevant to restitution.

·Judges should consider the full range of remedies 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 returned to court for an offender’s failure to fulfill his or 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.

It is essential for all parties to the restitution process to understand that the order of restitution will serve as a blueprint of sorts for the victim’s recovery. Minimally, the order of restitution should reflect the following:

Total amount of restitution;
Whether an initial payment is required at sentencing (or entry of the plea);
If there is to be a payment schedule, amount of payments and due dates;
For cases involving multiple victims, allocation and priority of restitution payment among victims;
For cases involving multiple defendants, whether the liability is joint and several (should be), and the specific amount of restitution owed by each defendant, with individual payment plans, if necessary;
Priority of payment of restitution in relation to other court-ordered payments, (e.g., restitution fine, court costs, support payments, etc.); and
Potential sanctions for failure to make a restitution payment.

A common practice is for a court to enter a restitution order, leaving the establishment of the payment schedule for determination by probation. This can lead to a variety of problems, one of which is illustrated by a recent Vermont case. In State v. Guinard, 726 A.2d 88 (Vt.Sup. 1999), the state sought to revoke the defendant’s probation when she failed to pay restitution in accordance with a payment plan she entered into with her probation officer. The court of appeals held that since the trial court had entered an order of restitution but had failed to set installment payments, the defendant could make restitution payments at any time during the probationary period, regardless of the contract she made with the probation officer which detailed a specific payment plan.

As a final consideration regarding orders of restitution, it is absolutely crucial that jurisdictions have legislative authority, court rules, statutory authority or some other form of enabling provision that allows for the modification of restitution orders in the event that victims’ expenses cannot be known at the time the order is entered, or if the financial situation of the offender undergoes some kind of change for the better. Responses to the survey indicate about a 50/50 split in jurisdictions as to whether they have procedures in place for the modification of restitution orders. While a variety of methods by which restitution orders can be subsequently modified were described, statutory or constitutional authority provides the greatest and most consistent protection to victims.

Exhibit 5b shows a sample order of restitution for Kay County, Oklahoma.

PRACTICAL POINTERS FROM THE TRENCHES

Deborah Lee, Coordinator of the Victim Assistance Unit (VAU), Juvenile Section, in King County, Washington, developed The Deputy Prosecuting Attorney Courtroom Handbook: Victim Rights and Restitution in the Juvenile Court. This comprehensive manual designed for reference and use by deputy prosecuting attorneys addresses every aspect of state and jurisdictional authority, case law, policies and procedures as such relate to restitution. Topics include:

Advocate Notes
Drafting of Agreed Restitution Orders
Victim Bill of Rights
Child Victims and Witnesses
State Constitutional Rights
Crime Victims Compensation
Definition of a Victim
Mediation and Private Restitution Agreements
Recovery Options Outside Juvenile Court (civil actions, small claims court)
Restitution Case Law
Restitution Rights
Restorative Justice
Victim Participation Rights

A section entitled "Restitution Tips," includes the following pointers for prosecutors regarding restitution orders:

1.If the victim advocate is present in court, introduce him/her and have the advocate present the loss information.

2.If the court is convinced that some of the loss should be ordered, but is unsure about a part of it, have the court order the part it’s sure of, and set a restitution hearing for the remainder.

3.If all medical/counseling costs are not yet complete, ask the court to leave restitution open, ordering amounts already incurred.

4.If an appeal of restitution looks likely, have all restitution documents entered into evidence.

5.If the court sets restitution over for another hearing, please identify all issues in your notes.

6.The victim’s presence is not required at a restitution hearing and the judge cannot order them to be present.

7.When the court will not order restitution in full due to the offender’s inability to pay, have the court state for the record the full amount of the victim’s loss. This may be useful if the victim sues civilly. Always ask the basis for the court’s restitution decision. The victim will want to know. Also consider a Motion for Reconsideration.

8.At disposition, if the defense requests a restitution hearing, argue against it and ask the court to set the amount if: (a) we do have all adequate information; and (b) the defense has had the discovery a reasonable length of time and is now throwing out unfounded assertions. It is better practice for the court to enter a restitution order and let the defense come back and contest it if they uncover new evidence, than to set the whole matter over.

9.At modification hearing, argue against restitution being waived in lieu of detention time served. Waiving it only rewards the offender for refusing to comply and further penalizes the victim.

It should also be noted that the state of Washington has extended jurisdiction over juveniles who owe restitution for a period of ten years after the age of eighteen, or through the age of twenty eight (RCW 13.40.145 and RCW 13.40.190(1)). Conversely, in many states, an order of restitution against a juvenile offender is no longer valid once the juvenile reaches the age of majority in that state.

CONSIDERATIONS INVOLVING OFFENDERS’ ABILITY TO PAY AND PAYMENT SCHEDULES

Much debate has occurred around the ability of offenders to pay restitution. For many years, the perceived incapacity of the majority of offenders within the criminal and juvenile justice systems to manage the payment of restitution was enough of a deterrent to many prosecutors and judges to make the remedy of restitution seemingly "not worth it." Fortunately, this attitude is increasingly waning. More and more support is developing among all players in the criminal and juvenile justice systems for the firm belief that restitution orders should reflect the full amount of loss and the only thing that should be affected by an offender’s ability to pay is the payment schedule. Mel Wilson, the Davis County, Utah Attorney and Chairman of the Restitution Study Committee asks the question, “Why are we cutting them a good deal and not addressing restitution? If I am going to reduce somebody from a second degree felony down to a third degree felony, part of the consideration should be that this person is going to pay full restitution for X amount of dollars” (M. Wilson, personal communication, October 28, 1999).

This is supported by the responses to the survey: 73% indicated that restitution orders routinely reflect the full amount of loss, while only 15% responded that orders do not reflect the full amount of loss (12% were unsure).

Stipulations in Restitution Orders that Increase the Likelihood of Payment

In the District Attorney’s Office, Eighth District, Newkirk, Oklahoma, the Victim Witness Coordinator cites "judicial backing with victim restitution a priority in order of collection" as one of the strongest aspects of the restitution program. The district judge developed guidelines for the payment of costs, fines and restitution, which provide the following requirements:

In felony cases where the total amount due (court costs, fines assessments, restitution) is less than $300, the total amount due shall be paid in full upon sentencing. No payment plan shall be allowed.

In felony cases where the total amount due exceeds $300 and the defendant is financially unable to pay the total amount due at the time of sentencing, a payment plan may be developed requiring a minimum initial payment and monthly payments thereafter in accordance with the following schedule:

Total Sum DueMinimum Initial Payment