Crime
Victim Restitution Today: Achievement of Goals and Objectives
As the
preceding discussion demonstrates, over the past two decades,
victim restitution has reemerged as an extensively authorized,
and sometimes required, criminal sanction. Its reemergence
has been actively promoted by those seeking to incorporate
a greater range of victim rights in the criminal justice
process. The return of restitution has been justified on
the ground that its imposition furthers many of the basic
aims of the criminal and punishment processes.
On a
general level, some theorists advance a restitutive concept
of justice or punishment. This approach does not seek to
return to the ancient victim-dominated systems of justice,
but it does recognize a role for the victim as well as for
the government and offender in the pursuit of justice and
punishment. In addition to the enforcement of criminal justice
as a means to maintain societal law and order and punish
individual offenders, it identifies victim restitution as
a third element of punishment. Although satisfaction from
the conviction and punishment of an offender provides some
"spiritual" gratification to a victim, material
reparation for injuries or losses suffered as a result of
the crime provides a more complete restitutive component
of punishment.
Other
theorists maintain that restitution furthers most of the
existing goals of the criminal justice process, such as
rehabilitation, deterrence, and retribution. These theorists
suggest that restitution promotes rehabilitative goals of
increasing an offender's responsibility and accountability
by requiring him to acknowledge the specific harm his act
has caused the victim. Through the satisfaction of his restitution
obligation, an offender can gain a greater sense of self-worth
and accomplishment, Restitution's implicit requirement that
an offender recognize the cost of his criminal behavior
is also viewed as having a deterrent effect on his future
criminal activities and those of others. Finally, by emphasizing
the wrongfulness of an offender's conduct and his moral
responsibility for it and by seeking to make the victim
(as well as society) "whole" through punishment,
restitution serves retributive punishment goals.
In addition
to these punishment goals, restitution is viewed as promoting
several specific objectives of the participants in the criminal
justice process. At the most obvious level, if restitution
covering a victim's loss is imposed and paid, restitution
addresses a victim's economic objectives from the process.
This economic redress is also viewed as furthering a victim's
psychological recovery from the offense. From an offender's
viewpoint, if the punishment goals of restitution are accomplished,
it is argued that restitution will result in reduced offender
recidivism. Of more immediate "benefit" to an
offender, use of restitution is often advocated as an alternative
to harsher, and more intrusive, forms of punishment. These
offender objectives contribute to the purported larger justice
system objective of reduced justice system costs from the
use of restitution. More generally, it is argued that use
of restitution will enhance the public credibility of the
criminal justice system.
The
achievement of so many goals and objectives would be a daunting
task for any criminal sanction. The challenge of such a
task is only made more difficult by the fact that some of
the goals and objectives are conflicting so that the priority
given to or achievement of one often results in the unfulfillment
of another. Thus, as the following discussion shows, despite
the enormous expansion of the constitutional, legislative,
and judicial authorization of restitution over the past
twenty years, restitution has not been able to achieve many
of the goals and objectives identified by its advocates.
Recovery
of Victim Economic and Psychological Loss
Medical,
property, and productivity costs associated with criminal
victimization are estimated to exceed $100 billion each
year. Victims recover only a fraction of these costs through
restitution. This restitution recovery deficit is attributable
to many factors. At the outset, crime victim restitution--like
all criminal sanctions-is a sanction of limited application.
Its imposition requires that a crime be reported and that
an offender be apprehended, prosecuted, convicted, and sentenced
to pay restitution to the victim. The ultimate recovery
of restitution is, of course, dependent on the offender's
actual payment of his restitution obligation.
The
majority of victims do not receive restitution because they
fail to report their victimization to the police. According
to the 1998 National
Crime Victimization Survey, victims reported approximately
46 percent of the major violent crimes and 35 percent of
the major property crimes measured by the survey. The absence
of a reported crime obviously precludes the prosecution
process, which could provide victim restitution.
Even
if a crime is reported to the police, the majority of reported
crimes do not result in an arrest and conviction. According
to the 1997 Uniform Crime Reports, the clearance rate for
the major violent and property crimes measured was only
22 percent, including a clearance rate of 48 percent for
measured violent crimes and 18 percent for measured property
offenses. In the 1997 reporting year, approximately 15,300,000
persons were arrested in the over twenty-five crime categories
measured. In a typical year, approximately 50 percent of
arrestees are generally prosecuted and convicted of crime.
As a result of this "funneling" effect, generally
less than 10 percent of criminal victimizations are even
potentially eligible for restitution by virtue of having
reached the conviction and sentencing stage.
Nevertheless,
given the widespread support for restitution expressed by
legislators, judges, practitioners, theorists, and the general
public, one would expect a high rate of restitution imposition
in cases resulting in a criminal conviction. Despite this
high level of conceptual support and despite the presumptive
or even mandatory imposition language of some restitution
statutes, restitution continues to be imposed in a minority
of criminal sentences. Moreover, after several years of
increases in the use of restitution, the most recent data
reflect overall declines in its imposition.
The
most comprehensive national data regarding the imposition
of restitution in state courts are contained in biennial
studies done by the United States Department of Justice
since 1988 regarding felony sentences in state courts. National
estimates regarding the imposition of restitution are based
on data from a representative sample of counties across
the country. These studies reflect that the imposition of
restitution rose from a low of 12 percent of felony sentences
in 1988, to 16 percent in 1990 and 1992, to a high of 18
percent in 1994, followed by a decline to 14 percent in
1996, the most recent completed study period. These increases
and more recent declines were mirrored in virtually all
of the violent, property, drug, weapons, and miscellaneous
nonviolent offense categories studied. In 1994, the study
period reflecting the highest levels of restitution, it
was imposed in 29 percent of property offenses, 17 percent
of violent offenses, 14 percent of miscellaneous nonviolent
offenses, 11 percent of drug offenses, and 9 percent of
weapons offenses.
Annual
data compiled by the United Sates Sentencing Commission
during this period reflect similar trends in the aggregate
imposition of restitution in federal courts. In the 1988
reporting year, the Commission reported that restitution
was imposed in approximately 9 percent of cases. This figure
rose steadily to a high of approximately 21 percent in 1995
before declining to approximately 19 percent in 1998, the
most recent reporting year.
Unlike
in the state courts, however, approximately half of the
offenders generally sentenced in federal courts are convicted
of drug and immigration offenses, which are not as amenable
to the imposition of restitution as other offenses. Moreover,
in the most recent reporting years, although the total percentage
of cases in which restitution has been imposed has declined,
the percentage of cases in most violent and property offense
categories have increased. As a result, in 1998, the most
recent reporting year, restitution was imposed in approximately
23 percent to 68 percent of cases in the individual violent
crime categories and in approximately 42 percent to 75 percent
of cases in the individual property crime categories? Although
these figures represent continuing increases in the imposition
of restitution, it must be remembered that many, if not
most, of these offenders were sentenced under the federal
mandatory restitution provisions regarding violent and property
crimes.
The
gap between legislative mandates and the actual imposition
of restitution is further illustrated by a study which compared,
inter alia, the imposition of restitution in two states
which the researchers regarded as having "strong"
restitution provisions with its imposition in two states
regarded as having "weak" provisions. Contrary
to their hypothesis that judges in the strong provision
states would be more likely to order restitution than those
in the weak provision states, restitution was ordered in
only 22 percent of the cases in which a victim had suffered
economic loss in the strong provision states as opposed
to 42 percent of such cases in weak provision states. Thus,
legislative presumptions and mandates and broad conceptual
support for restitution by judges and others involved in
the criminal justice process have not resulted in the imposition
of restitution for significant portions of the victims whose
offenders are actually convicted and sentenced for their
crimes.
Moreover,
the imposition of a restitution order does not automatically
mean that the order will cover the full amount of victim
losses. Only the federal system and a few states ostensibly
require that a restitution order cover the full amount of
a victim's direct losses from the crime. In most states,
the court is required or permitted to consider an offender's
economic circumstances and various other factors in addition
to victim loss when determining the amount of restitution
ordered. Given the high rate of indigence among offenders
and other potential limitations on restitution, restitution
orders often do not cover all of the victim's direct losses
from the crime in those instances in which restitution is
imposed.
Finally,
a victim's ultimate recovery of whatever amount of restitution
is imposed is totally dependent on the offender's compliance
with the restitution order. Although restitution in the
average case is generally for a relatively modest sum, achieving
offender compliance with the restitution order remains a
challenge. In a national study of seventy-five restitution
programs, conducted in 1988, restitution program directors
reported an average 67 percent of offenders of paid their
restitution obligations. When researchers performed more
standardized compliance analyses at four of the program
sites, however, they determined that only 42 percent of
the offenders made full restitution payment within two years
of the restitution award. Researchers in an earlier national
study reported compliance rates for individual programs
ranging from 23 to 100 percent of cases. Thus, many of the
victims who survive all of the above steps in the criminal
process, and ultimately obtain a restitution award never
recover the full amount of the restitution ordered.
Victims'
inability to obtain full restitution for losses suffered
as a result of crime can impede not only their economic
recovery, but also their psychological recovery from crime
and overall satisfaction with the criminal justice process.
One researcher found that the receipt of partial or full
restitution was related to victims' reduced levels of distress
during the study period approximately two years after their
victimization, as well as to the victims' satisfaction with
their offenders' sentence and the criminal justice system.
These results are consistent with another researcher's findings
that 61 percent of surveyed victims selected restitution
as the fairest form of punishment in their cases.
Unfortunately,
researchers have also found significant levels of victim
dissatisfaction with restitution awards and compliance.
In one study, researchers found only 56 percent of victims
were satisfied with the size of their restitution awards
and that only 44 percent felt that the awards fully covered
their losses. An even smaller number, 37 percent, were satisfied
with the timelines of their restitution payments and only
33 percent were satisfied with the amount of restitution
actually received. These researchers found, in multivariate
analysis, that the best predictors of victims' satisfaction
with restitution were the percentage of the award actually
paid and whether the award covered the victims' losses.
In another study, researchers found that only 55 percent
of the victims studied viewed the restitution amount as
fair and only 44 percent reported that they were satisfied
with the overall treatment their offenders received.
Thus,
despite the extensive legislative and judicial authorization
of restitution, it is clear that significant progress remains
to be made in achieving the victim objectives of recovery
of economic and psychological loss from crime. Moreover,
because recovery of victim loss appears to be inextricably
linked to victim satisfaction with the sentence and with
the criminal justice system itself, it also appears that
victim satisfaction will not significantly increase until
the imposition and collection of restitution increases.
