Crime
Victim Restitution Today: The Legal Framework
FEDERAL
Since
enacting the restitution provisions of the VWPA in 1982,
Congress has continued to expand the federal restitution
provisions. As a result of the Mandatory Victims Restitution
Act of 1996, restitution is currently mandatory upon a defendant's
conviction for a federal violent or property crime in which
there is an identifiable victim who has directly and proximately
suffered physical injury or pecuniary loss. Upon conviction
for other federal crimes, including drug offenses, the imposition
of restitution is discretionary. In instances in which restitution
is imposed, the court "shall order restitution to each
victim in the full amount of each victim's losses as determined
by the court and without consideration of the economic circumstances
of the defendant." In determining the manner in which
restitution is to be paid, the court considers the defendant's
resources, assets, earning potential, and obligations.
A defendant's
liability to pay restitution lasts twenty years from the
entry of judgment or release from imprisonment, whichever
is later. The Attorney General is responsible for the collection
of unpaid restitution and is authorized to use the general
means available to enforce civil judgments, such as liens
and garnishment. The court can utilize a variety of sanctions
upon a defendant's default of his restitution obligations,
including modification or revocation of probation or supervised
release, resentencing, contempt, injunctive relief, and
forced sale of property.
Since
the enactment of the VWPA, federal reviewing courts have
actively interpreted the scope of federal restitution and
supervised its implementation. Initially, reviewing courts
addressed constitutional challenges to the facial validity
of the restitution structure embodied in the VWPA (and maintained
through its subsequent amendments). Constitutional challenges
were raised on Fifth, Seventh, and Eighth Amendment grounds.
Reviewing
courts rejected Fifth Amendment due process challenges to
the restitution statute, At the outset, appeals courts noted
that the degree of due process required at sentencing is
not the same as that required at trial. Because the sole
interest being protected at sentencing is the right not
to be sentenced on the basis of invalid or inaccurate information,
only that degree of protection necessary to ensure that
sentencing judges are sufficiently informed to appropriately
exercise their sentencing authority is required. The considerations
required by the restitution statutes, as well as the protections
given to a defendant by Federal Rule of Criminal Procedure
32 to challenge presentence information, to make a statement
in his own behalf, and to present any information in mitigation
of punishment, provide a sufficient basis to ensure a defendant's
due process rights regarding restitution ordered at sentencing.
Reviewing
courts also rejected Fifth Amendment equal protection and
Eighth Amendment cruel and unusual punishment claims that
restitution may not be imposed on defendants who are indigent
at sentencing. These courts noted that because the restitution
statutes allow an extended period of time within which to
satisfy a restitution order, indigence at sentencing is
not a bar to restitution. Constitutional concerns would
be raised only if a restitution order were enforced at a
time when a defendant, though no fault of his own, was unable
to comply?
Claims
that the restitution procedures transformed the judicial
sentencing proceeding into a "juryless" civil
proceeding in violation of the Seventh Amendment were also
rejected. Appellate courts characterized restitution as
a form of punishment that serves recognized punishment goals
of deterrence, rehabilitation, and retribution. These courts
noted that the Constitution does not require a jury to determine
any aspect of a defendant's sentence. Although the restitution
sanction has certain civil aspects and consequences it was
found to be fundamentally different from a civil adjudication
in that it can only be imposed after a determination of
criminal guilt, the victim is not party to the sentencing
proceeding, and factors such as the defendant's financial
condition are required to be considered concerning its imposition
or implementation. Reviewing courts concluded that the civil
aspects of restitution do not transform a criminal sentence
into a civil proceeding-requiring act finding by a jury.
After
resolving the initial facial constitutional challenges to
the restitution statutes, the federal appellate courts have
primarily addressed questions concerning the scope of the
statutes, such as the types of victims, victim losses, and
offenses covered by the restitution provisions. Significant
early litigation concerned the VWPA's authorization of restitution
upon a defendant's conviction to "any victim of the
offense." Appellate courts differed as to whether this
provision permitted courts to require defendants charged
with multiple offenses, but actually convicted of fewer
offenses, to make restitution for losses related to the
other alleged crimes. The Supreme Court resolved the issue,
in 1990, by holding that the "language and structure
of the [VWPA] make plain Congress' intent to authorize an
award of restitution only for the loss caused by the specific
conduct that is the basis of the offense of conviction."
Soon after this decision, however, Congress clarified and
expanded the scope of restitution provisions regarding offenses
involving schemes, conspiracies, and patterns of criminal
activity, as well as regarding convictions requiring restitution
as part of a plea agreement, significantly increasing the
number of victims eligible for restitution.
The
federal courts have matched Congress' increase in the number
of victims eligible for restitution with a generally expansive
interpretation of the types of eligible victims and victim
losses. In addition to the human, direct victims eligible
for restitution, reviewing courts have found restitution
warranted for some indirect human crime victims, such as
family members or incidental persons suffering losses as
a result of an offender's commission of crimes against direct
victims. Courts have also upheld restitution awards to entities
directly and sometimes indirectly victimized by defendants,
as illustrated by restitution awards to a computer company
for an offender's fraudulent acquisition of software as
well as to the Federal Deposit Insurance Corporation, as
insurer and receiver of a failed bank victimized by an offender.
Appellate
courts have also upheld a wide range of amounts and types
of restitution. For example, restitution orders in the millions
of dollars have been upheld when supported by evidence of
victim loss. In addition to direct losses resulting from
a criminal act, restitution for various ancillary costs
associated with the crime has also been upheld, including
pre-judgment and post-judgment interest. Thus, as authorized
by Congress and interpreted by the federal courts, the scope
of the federal restitution provisions can be significant.
STATE
Restitution
provisions have also been expanded significantly by the
states. Of the approximately thirty states that currently
have constitutional provisions granting victims certain
rights in the criminal justice process, over half include
some type of a victim right to restitution. Every state
has statutory restitution provisions, most often authorizing
restitution as a probation condition or as an independent
sentence, or both. Although approximately half of the states
use language in their statutory provisions, which creates
a presumption that the imposition of restitution is mandatory,
most of these provisions include various exceptions, which
render the provisions permissive. In the remaining states,
the imposition of restitution is entirely permissive and
within the discretion of the sentencing authority. In the
majority of states, a restitution order is enforceable in
the same manner as a civil judgment.
Reviewing
state courts have generally interpreted restitution provisions
as broadly as the federal courts. State courts have upheld
restitution awards to a wide range of direct and indirect
human and institutional victims of crime. Individuals directly
victimized by crimes ranging from assault and battery to
false swearing and disorderly conduct, have received restitution
awards. Humans indirectly victimized by crime have also
received restitution in some instances, such as victims'
family members or persons whose property was damaged during
offenders' commission of crimes against others. Entities
directly victimized in crimes ranging from theft or embezzlement
to fraudulent receipt of public assistance or other funds,
have been awarded restitution. Restitution has sometimes
also been granted to indirectly victimized entities, such
as direct victims' insurers or employers.
State
courts typically grant victims restitution designed to compensate
them for direct losses from crime, such as costs of medical
treatment in cases of physical injury or those associated
with direct property loss.
