Obstacles Undermining Restitution
Economic realities limit the ability of many convicts to meet their restitution obligations. Because the street crime problem is in large part an outgrowth of poverty and the desperation it breeds, restitution obligations collide with competing claims for the same earnings. Ex-offenders have more pressing expenses and other debts. Furthermore, restitution is predicated on work that pays a living wage. Offenders must have, must be helped to find, or must be given reasonably well-paying jobs. These
F I G U R E 12.2 Case Attrition, Funneling, or Shrinkage: The Leaky Net
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jobs need to pay far more than the minimum wage to permit installments for victims to be deducted from total after-tax earnings. But the U.S. economy cannot provide decent jobs for all who want to earn a living, even during the best of times.
Many dilemmas arise when restitution obliga- tions are considered within the context of intense competition for the limited number of well-paying jobs convicts are capable of doing. If a position is found or created for an ex-offender, then the pro- spects for the successful completion of the restitu- tion obligation are increased. Otherwise, those hurt by down-and-out street criminals are denied a real- ist chance to get repaid. If the job pays low wages, then the repayment process cannot be completed within a reasonable amount of time. If nearly all of the ex-offender’s earnings are confiscated and handed over to the victim, it would jeopardize the wrongdoer’s commitment to the job and to repaying the debt. If the job is demeaning, then its therapeutic value as a first step in the direction of a new lifestyle built on productive employment is lost. If the job is temporary and only lasts for the duration of the restitution obligation, then the risk of returning to a career of crime is heightened.
But if a job found or created for an ex- offender is permanent and pays well, then some observers might object that criminals are being rewarded, not punished, for their misdeeds. Law- abiding people desperately seeking decent jobs will resent any policy that seems to put offenders at the front of the line. Trade union members rightfully will fear that convict labor could replace civilian labor over the long run. But if inmates are put to work in large-scale prison industries, then business interests and labor unions justifiably will complain about unfair competition. If adolescents owing restitution are too young to receive working papers, then a job in private industry would violate child labor laws. Only unpaid community service would be permissible—but then the direct victims get nothing.
When the injured parties are hard-pressed to make ends meet, restitution seems appropriate and fair. But if indigent offenders must hand over money to affluent victims, then restitution smacks
of exploitation—taking from the poor and giving to the rich. Conversely, if prosperous offenders (such as white-collar criminals) are allowed to pay off their obligations from their bank accounts and not with hard work, it will appear that they are buying their way out of trouble. If poor people are kept behind bars and denied the opportunity to make restitution as a condition of probation or parole because they lack marketable job skills, such discrimination against an entire class of people seems to be a violation of the equal protection clause of the Fourteenth Amendment.
Yet in jurisdictions where the criterion for release from confinement was a perceived ability to repay, a typical participant in a restitution program turned out to be a white, middle-class, first-time property offender, and the most com- mon recipient of reimbursement was a business, studies showed (see Galaway and Hudson, 1975; Edelhertz, 1977; Hudson and Chesney, 1978; Gottesman and Mountz, 1979; Harland, 1979, 1981a; and Outlaw and Ruback, 1999).
Restitution in Action
Courts in every state now have the authority to order restitution. Victims are promised a right to restitution in some states that have adopted pro-victim constitu- tional amendments. In many states, judges are sup- posed to impose restitution obligations on convicts whenever possible and if appropriate, unless there are compelling or extraordinary circumstances (which must be entered into the record in writing). Restitution should routinely be part of the sentence after either negotiated pleas or trials. Often, judges are specifically directed to order reimbursement in cases of child abuse, elder abuse, domestic violence, sexual assault, identity theft, drunk driving, and hate crimes. The repayment can cover outlays for medical expenses, counseling bills, replacing property that was damaged or destroyed, lost wages, other direct costs, and even funeral expenses (National Center for Victims of Crime, 2002d).
Statistics compiled by the federal government shed light on the actual rate of ordering convicts to make restitution in state courts around the country.
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The national data compiled in Table 12.1 (up to 2006, the latest year available) reveals that, in gen- eral, judges have not been imposing restitution obligations on most offenders. Judges ordered felons to repay their victims in addition to another sentence (usually a term of incarceration, but some- times a fine or compulsory treatment) in only a fraction of all convictions for either violent crimes or property crimes. Restitution was part of the sentence in a larger percentage of felony convic- tions for burglary, larceny, motor vehicle theft, and fraud than it was for murder, rape and other sexual assaults, robbery, and aggravated assault. Peo- ple who commit fraud are the most likely to have to pay back those they fleeced (who might be busi- nesses rather than individuals). Murderers are the least likely of all felons to be forced to take financial responsibility for the losses they inflicted (presum- ably to the families of the people they killed).
As for changes over time, the imposition of restitution by judges may have been creeping upward during the late 1990s but slipped backward during 2002. However, by 2006, the ordering of repayment in state courts rebounded and reached new highs that surely were still disappointingly low to those who firmly believe in restitution as an important compo- nent of criminal justice. The trends in Table 12.1 were derived from a court monitoring system operated by the Department of Justice that tracks dis- positions in nearly 1 million cases every two years in the nation’s 75 largest jurisdictions (see Langan and Graziadei, 1995; Durose, 2004; BJS, 2008c; and Rosenmerkel et al., 2010).
Another set of figures from this federal database is worth examining for national trends (see Table 12.2). In theory, making restitution is more feasible if a convict is on probation rather than behind bars. In practice, restitution doesn’t materialize most of the time. Of felons who were fortunate enough to be sentenced to probation for violent acts, only about one in seven was ordered by a judge in state court to try to reimburse those they harmed as one of the con- ditions they must obey; and in 2006 this fraction plunged to merely 1 in 11, as second row in Table 12.2 shows. However, in 2009, this proportion shot up to over 20 percent, which is a hopeful sign. The third row reveals that felons on probation for property crimes are ordered to make restitution at a higher rate. But not much changed over a 15-year period. The highest proportion was achieved in 1996, when about two-fifths of all probationers were ordered to work off their debt. After drifting downward, nearly the same percentage was reached in 2009. This lack of an upward trend toward greater use of restitution in property crimes (seemingly the easiest and most appropriate cases) is another disappointment to people who believe in the potential of restitution as a means of reimbursement.
The three most frequently cited reasons for judges failing to impose restitution are that victims didn’t request reimbursement, they failed to document their losses, or they were unable to calculate their exact expenses. Often, judges felt that restitution obligations would be inappropriate if convicts also had to repay society by serving time behind bars or if they had a very limited potential to earn a living wage.
T A B L E 12.1 Percentages of Convicted Felons Sentenced to Restitution as an Additional Penalty in the 75 Largest Jurisdictions Nationwide, Selected Years, 1996–2006
Convicted for: 1996 1998 2000 2002 2004 2006
Murder 9 10 11 7 14 13 Rape and sexual assault 9 11 11 10 16 18 Robbery 11 13 13 10 16 18 Aggravated assault 14 14 13 11 15 18 Burglary 21 23 24 20 24 27 Larceny 22 21 25 19 26 26 Vehicle theft 22 21 27 19 37 28 Fraud 32 29 31 24 30 29
SOURCES: Rosenmerkel, S., Durose, M., & Farole, D. (2010, November). Felony sentences in state courts, 2006, (revised). BJS National Judicial Reporting Program. Washington, DC: U.S. Department of Justice.
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Despite these obstacles, limitations, conflicting priorities, dilemmas, and ironies, restitution is under way in many jurisdictions. Probation departments run most (75 percent) supervision and collection programs (Office of Juvenile Justice and Delin- quency Prevention, 1998a, 1998b).
When criminologists and victimologists evalu- ate the effectiveness of these programs, the chal- lenge is to identify the specific goals and to devise appropriate criteria to measure degrees of success and failure. Victim-oriented goals involve making the injured parties whole again by enabling them to collect full reimbursement and to regain peace of mind (recovery from emotional stress and trauma). Offender-oriented goals are achieving rehabilitation and avoiding recidivism. System-oriented goals include reducing case processing costs, relieving taxpayers of the financial burden of compensating people who have been harmed, alleviating jail and prison overcrowding through alternative sentences, and improving citizen cooperation by providing material incentives to injured parties for participat- ing in the criminal justice process. So many differ- ent aims and touted benefits coexist that no sweeping conclusions can be drawn about the effectiveness of the programs now in operation (for example, see McGillis, 1986; Butts and Snyder, 1992; Davis, Smith, and Hillenbrand, 1992; and Jacobs and Moore, 1994).
To improve the chances that convicts will make at least partial restitution, notification laws could be strengthened to ensure that victims are advised of their rights. Prosecutors could bear the routine responsibility of requesting restitution, or restitution could be considered mandatory unless the judge specifically excuses the offender from this obligation. Presentence investigation reports
and victim impact statements could be used as a standard form to document claims for repayment (NCVC, 2002c). To better enforce restitution orders, judges could routinely investigate the assets of convicts before crafting a workable payment plan. To decrease the likelihood of default, prose- cutors could obtain injunctions to prevent defen- dants from hiding or quickly spending their assets (cash, savings, investments, homes, vehicles, valuable possessions), and probation and parole departments could more closely monitor these court-ordered payments, and either revoke or extend periods of probation and parole if the convict willfully refuses to make timely payments. The money to be handed over can be deducted from inmates’ wages from prison labor, state and federal income tax refunds, lottery winnings, inheritances, trust accounts, and collateral used for bail. If convicts default, private collection agencies can be called, and unpaid bal- ances can be converted into civil judgments enforced by seizures of property by sheriffs’ departments (NCVC, 2002b).
However, for those who become impatient and dissatisfied with the slow pace of improvement in restitution ordered by judges in criminal courts, another avenue for reimbursement can be pursued: lawsuits in civil courts.