National: Real Restitution Reform

Article by Arwen Bird, Open Society Fellow

What do you think of when you hear the word “restitution”?  It may be something that you owe to someone, it may be something you are owed. It may be an idea that you think about, but don’t have a personal connection to.  In our criminal justice system, restitution is a contract for re-payment between someone convicted of a crime and the survivor of that crime. Restitution can be powerful, with great potential to transform both the giver and receiver; but the reality of how it operates in our current legal system is a disappointment.

Restitution tends to be attached to some sort of harm that was done: trust that was broken, life-long physical injury or emotional pain.  For some, restitution can be like a thorn in their side — always there nagging, a reminder of pain and regrets. For others, it can be an affirmation that they are not the same person. Now, instead of choosing to do harm, they are choosing to repair harm. Paying restitution, while it may never actually be pleasant, can still be positive.

For some survivors of violence who are owed money to compensate for their injuries, it is about the money. There are expenses following crime: medical bills, lost wages from having to miss work, counseling expenses, help remodeling a home for a newly disabled person or funeral expenses. For other survivors, it is not about the money. Restitution can be healing, showing that the person who did the harm is accepting responsibility and interested in making amends. When a survivor has lost a loved one, receiving restitution can be painful reminder.  Restitution is one of the few, if not the only opportunity for some form of amends to be made between people who have caused harm and their survivors. Although restitution does not have the same effect on all survivors, it is important that it is available to all survivors.

Our current criminal legal system is kind of a hodge-podge of ideas, values and traditions.  This is especially true of restitution, which is often not survivor-centered, but punishment-centered. As a result, the system proves to be ineffective at both getting compensation to survivors and helping people who owe restitution earn enough money to pay it.

Every state in our region (OR, WA, MT, ID, UT, NV, WY) has laws that allow restitution to be ordered as part of an individual’s sentence. It is up to the survivor to track expenses and provide the prosecution with the total needed for compensation; this is often done in through DA-based victims’ assistance offices. This means that a minority of people entitled to restitution ever apply for it. This system only works

1. If a survivor reports the crime
2. If they cooperate with the prosecution in their case.

Since the majority of people do not report their victimization, this system does not come close to serving all people. And making sure that people are taken care of should not depend on ‘playing nice’ with prosecutors.  Even for the minority of people who apply for restitution, there is very little information about how much restitution is ordered each year, versus the amount paid to survivors.

In the Fall 2004 issue of Justice Matters we discussed the federal and state victims rights amendments; three of the amendments in our region (Oregon, Idaho and Montana) have a constitutional guarantee of restitution for survivors. Yet, they do not provide for a structure that means it will be paid, so that guarantee is in name only.

But if funding restitution is a priority, it can be done. States or counties who increase the number of staff to track and disperse restitution have also increased the number of survivors who are receiving restitution. 

In Oregon, the Attorney General convened a task force on restitution in 2004.  One of the first changes the task force made was a major policy shift mandating that the full amount of restitution be ordered at the time of sentencing, with a defendant’s ability to pay determining the payment schedule. This change is helpful in that it ensures that compensation for harm done to survivors will be ordered; but it does not allow for considering changes in individual cases. And no additional support is available to help defendants pay what they owe.  The task force has come up with more recommendations for this legislative session, including mandating that parents pay a certain amount of a juvenile’s restitution order, people who are found guilty by reason of insanity still be ordered to pay restitution and preventing expungement of convictions as long as restitution is owed. (Expungment is the removal of information from a person’s criminal record.) Those three policies are all examples of non-survivor centered restitution policy. Some of the proposals are likely to become law; however their ability to get restitution into the hands of survivors is uncertain at best.

In Washington state, every person convicted of a felony is required to pay at least one court-ordered legal financial obligation (LFO) — the crime victim’s compensation fee.  Under current law anyone with a felony is not able to vote until they have paid any outstanding LFOs. Under this law, restitution is directly tied to punishment, in the form of limiting an individual’s civil rights. Victims’ advocates have offered different views on this; with some saying that the right to vote should be withheld from people as an incentive to pay their restitution. But tying payment of restitution to voting rights is in effect a form of a poll tax, and is not motivating people to pay their restitution with the victim/survivor in mind.  It shifts the focus of restitution toward punishment (you must pay) rather than accountability and healing (it’s the right thing to do).

If we truly want to ensure that restitution makes it into the hands of the people who have been harmed the system needs to improve in three significant ways:

Community-based Advocates: There must be adequate numbers of victim and survivor advocates, based in the community, (with access to parole and probation departments but not Parole/Probation Officers) and with small enough caseload sizes to assess the harm, identify resources and keep track of the survivors who are owed restitution. They need to be separate from the system focused on criminal prosecution.

Employment assistance: The prison system needs to ensure that people who owe restitution have the ability to pay. People need to be earning a real wage while working inside, and when leaving prison need living wage jobs that are also sustainable for the community.

Shake-up Tradition: Overall the system needs to shift from the thinking that punishment equals justice toward accountability and responsibility.  The focus of an individual’s sentence is on helping them accept responsibility. Restitution, education, community service (real community service, not only garbage pick-up) and time spent confronting the effects of our choices would be the priorities.

Slow progress is being made in helping survivors get compensation for their injuries, and real accountability. However, we can’t continue to just tinker with a system of misplaced priorities. Creating a survivor-focused restitution system that fosters accountability and responsibility, ensures living wage jobs, and provides enough advocates to meet the needs of survivors would bring us much closer effective restitution. Rather than a thorn in the side of someone who owed it, restitution can become a vehicle for healing, apology and transformation.

This article originally appeared in the Winter 04-05 issue of Justice Matters.