Community Education  
  National Crime
Victim Rights Week
  Victim Impact
  Crime Compensation Fund  
  Constitutional Amendments  
  VWAP County Programs  

Community Education

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.



Contact Information     Resources