Chapter 5 THE ORDER OF RESTITUTION - valor …

1 72 Chapter 51 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.

2 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 1 Author: Morna Murray 73 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 .

3 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. 74 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.

4 In response to whether a written protocol ( , 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.

5 The Virginia Code actually mandates the use of the RESTITUTION Plan, providing as follows: Sec. (B). At or before the time of sentencing, the court shall receive and consider any plan for making plan shall include the defendant s home address, place of employment and address, social security number and bank 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. 75 76 77 78 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.

6 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.

7 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.

8 Having established the RESTITUTION report as a protocol within 79 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.

9 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.

10 80 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.