Victimology5

12 Repaying Victims

CHAPTER OUTLINE The Costs of Victimizations

Gaining Restitution from Offenders

Back to Basics The Rise, Fall, and Rediscovery of Restitution Divergent Goals, Clashing Philosophies Opportunities to Make Restitution Obstacles Undermining Restitution Restitution in Action

Winning Judgments in Civil Court

The Revival of Interest in Civil Lawsuits The Litigation Process Collecting Damages from Third Parties

Collecting Insurance Reimbursements

Private Crime Insurance Patterns of Loss, Recovery, and Reimbursement Federal Crime Insurance

Recovering Losses through Victim Compensation Programs

The History of Victim Compensation by Governments The Debate over Compensation in the United States How Programs Operate: Similarities and Differences Monitoring and Evaluating Compensation Programs

Confiscating Profits from Notorious Criminals Writing and Rewriting the Law

Summary Key Terms Defined in the Glossary Questions for Discussion and Debate Critical Thinking Questions Suggested Research Projects

LEARNING OBJECTIVES To recognize the many individual and social costs

imposed by criminal activities.

To develop a familiarity with the different ways that injured parties can get reimbursed for their losses.

To understand the various rationales for imposing restitution obligations on offenders.

To become familiar with the arguments in favor of and in opposition to state-run compensation funds.

To recognize the opportunities and drawbacks of civil lawsuits.

To identify the limitations of insurance coverage as a means of recovery.

To appreciate the reasons for favoring and for opposing notoriety-for-profit laws.

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The costs of victimizations cannot be measuredsolely in monetary terms. Mental anguish and physical suffering cannot easily be translated into dollars and cents. Nevertheless, repairing the dam- age to a victim’s financial standing is an achievable goal and a necessary step toward recovery.

Out-of-pocket expenses can be regained in many ways. Making the offender pay is everyone’s first choice, as it embodies the most elemental notion of justice. In criminal court, judges can order con- victs to make restitution, generally as a condition of either probation or parole. Insurance coverage also can be a source of repayment. In some cases, financial aid can be forthcoming from a government-run state compensation fund set up to cover certain crime- related expenses. Note that restitution and compen- sation are alternative methods of repaying losses. Restitution is the responsibility of blameworthy offenders. Compensation comes from blameless third parties, either government-run funds or private insurance companies. In civil court, judges and juries can compel wrongdoers to pay monetary damages. Another possible source of reparations might come in the form of a civil court judgment against a grossly negligent third party, such as a commercial enterprise or a governmental agency that is considered to bear some responsibility for the criminal incident. Finally, in rare instances, victims might be able to deprive offenders of any profits gained from selling a sensa- tionalized “inside story” of their shocking exploits.

This chapter explores all of these means of eco- nomic recovery: court-ordered restitution, lawsuits for damages, third-party civil suits, private insurance policies, government compensation plans, and leg- islation prohibiting criminals from cashing in on their notoriety.

THE COSTS OF VICTIMIZATIONS

The social costs of crime-related expenditures are staggering, according to economists’ estimates. Vic- tims sustain economic losses whenever offenders take cash or valuables; steal, vandalize, or destroy property; and inflict injuries that require medical attention and recuperation that interferes with

work. Theft and fraud bring about the direct trans- fer of wealth from victims to criminals. Murders terminate lives prematurely, resulting in lost earn- ings for devastated family members. Nonfatal wounds trigger huge expenses for medical care— bills from doctors, emergency rooms, hospitals, pharmacies, nursing services, occupational thera- pists, and dentists. The old saying, “It’s only money” might underestimate how even modest losses from a robbery or theft can impose serious hardships for individuals living from paycheck to paycheck, as this case demonstrates:

A knife-wielding robber steals the purse and jewelry of a retired woman scraping by on disability payments. It takes at least six weeks to replace the ID cards and Social Security check in her stolen wallet. In the meantime, she has no cash, no bus pass, and no way to pay for her many prescription drugs, or even dog food for her pet. None of the social service agencies on the list provided by the big city police department offers emergency financial assistance. Finally, she discovers a faith-based charity that is willing to pay her rent and electric bill and give her food vouchers and $50 in cash. “If not for them, I could not have gotten my heart medication, and I’d be going to bed hungry,” she tells a reporter. (Kelley, 2008)

Serious injuries may also inflict emotional suf- fering that requires psychological care for intense feelings of fear, grief, anger, confusion, guilt, and shame. Possible long-term consequences include mental illness and suicide, as well as alcohol and drug abuse. Some may get their lives back in order rather quickly, but others could be haunted by disturbing memories and burdened by phobias and by post-traumatic stress disorder (PTSD) for long periods of time. Overall, the lifetime risk of developing PTSD for violent crime victims is much higher than for the general public. Rates of experiencing episodes of major depression and gen- eralized anxiety are also greater. Furthermore, the effects of the victims’ emotional turmoil are likely to spill over on to family members, close friends, even neighbors. An outbreak of crime can have a

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negative impact on an entire community, fostering a fear of strangers, undermining involvement in activities outside the home, eroding a sense of cohesiveness, and driving out some of the most productive residents (Herman and Waul, 2004).

Even those who are not directly connected to the injured parties may suffer a “psychic toll” from the ever-present fear that permeates a crime-ridden community. The result is that people are willing to pay substantial amounts of money in the form of taxpayer-funded government actions plus private expenditures in their search for greater security and an improved quality of life. Expenses arise from the crime-induced production of goods and services that would not be necessary if illegal activities were not such a grave problem. For exam- ple, the time, money, and resources spent on manufacturing protective devices (locks, surveil- lance cameras, and alarm systems) are crime- induced outlays, as are private security forces and theft insurance. Similarly, local, state, and federal government funds are consumed pursuing “the war on crime,” “the war on drugs,” and the “war on terror.” That translates into huge expenditures for investigating illegal activities by law enforce- ment agencies, and running court and prison sys- tems (including prosecutors’ offices, indigent defense, incarceration, treatment programs, proba- tion, and parole). All of these governmental expen- ditures can be considered to be a net loss of productive resources to society. If the risks to life and health from criminal activity were not so great, these corporate, governmental, taxpayer, and per- sonal expenditures could have been used to meet basic needs and improve living standards for the law-abiding majority (Anderson, 1999).

Some studies that attempt to estimate the costs of crimes focus on what victims lose, but others high- light how much “society” loses when an offender becomes enmeshed in a criminal career. For exam- ple, one group of researchers projected that every murder of an adult (in Pennsylvania in the late 1990s) cost the entire society about $3.5 million. Another group of researchers devised a formula for monetizing a criminal career in order to determine its “external costs” to others over a lifetime, and came

up with even larger estimated societal outlays. For example, each murder inflicted about $4.7 million in victim costs, over $300,000 in justice system expenditures, and nearly $150,000 in offender pro- ductivity losses, for a total cost of over $5 million. Each armed robbery imposed costs of nearly $50,000, and the average burglary inflicted losses of about $5,500 (De Lisi et al., 2010).

GAINING RESTITUTION FROM OFFENDERS

Back to Basics

A renewed interest in restitution developed during the 1970s. Restitution takes place whenever injured parties are repaid by the individuals who are directly responsible for their losses. Offenders return stolen goods to their rightful owners, hand over equiva- lent amounts of money to cover out-of-pocket expenses, or perform direct personal services to those they have harmed. Community service is a type of restitution designed to make amends to society as a whole. Usually it entails offenders working to “right some wrongs,” repairing the damage they are responsible for, cleaning up the mess they made, or laboring in order to benefit some worthy cause or group. Symbolic restitu- tion to substitute victims seems appropriate when the immediate casualties can’t be identified or located, or when the injured parties don’t want to accept the wrongdoers’ aid (Harris, 1979). Crea- tive restitution, an ideal solution, comes about when offenders, on their own initiative, go beyond what the law asks of them or their sentences require, exceed other people’s expectations, and leave their victims better off than they were before the crimes took place (Eglash, 1977).

As a legal philosophy, assigning a high priority to restitution means the financial health of victims will no longer be routinely overlooked, neglected, or sacrificed by a system ostensibly set up to deliver “justice for all.” Criminal acts are more than sym- bolic assaults against abstractions like the social order or public safety.” Offenders shouldn’t be prosecuted solely on behalf of the state or the

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people. They don’t only owe a debt to society. They also have incurred a debt to the flesh- and-blood individuals who suffer economic hard- ships because of illegal activity. Fairness demands that individuals who have been harmed be made whole again by being restored to the financial con- dition they were in before the crime occurred (see Abel and Marsh, 1984).

Usually, wrongs can be righted in a straightfor- ward manner. Adolescent graffiti artists scrub off their spray-painted signatures. Burglars repay cash for the goods they have carted away. Embezzlers return stolen funds to the business they looted. Occasion- ally, client-specific punishments are imposed, tailored to fit the crime, the criminal, and unmet community needs. For example, a drunk driver responsible for a hit-and-run collision performs sev- eral months of unpaid labor in a hospital emergency room to see firsthand the consequences of his kind of recklessness. A teenage purse snatcher who preys on the elderly spends his weekends doing volunteer work at a nursing home. A lawyer caught defrauding his clients avoids disbarment by spending time giving legal advice to indigents unable to pay for it. Such sentences anger those who are convinced that imprisonment is the answer and fervently believe, “If you do the crime, you must do the time.” But imaginative dispositions that substitute restitution and community service for confinement are favored by reformers who want to reduce jail and prison overcrowding, cut the tax burden of incarceration, and shield first-time and minor offenders from the corrupting influences of the inmate subculture (“Fitting Justice?,” 1978; “When Judges Make the Punishment Fit the Crime,” 1978; Seligmann and Maor, 1980).

The Rise, Fall, and Rediscovery of Restitution

The practice of making criminals repay their victims is an ancient one. Spontaneous acts of revenge were typical responses by injured parties and their kin before restitution was invented. Prior to the rise of governments, the writing of laws, and the crea- tion of criminal justice systems, the gut reaction of

people who had been harmed was to seek to “get even” with wrongdoers by injuring them physically in counterattacks and by taking back things of value. But as wealth accumulated and primitive societies established rules of conduct, the tradition of retaliatory violence gave way to negotiation and reparation. For the sake of community harmony and stability, compulsory restitution was institution- alized in ancient societies. Reimbursement practices went beyond the simplistic formula of “an eye for an eye and a tooth for a tooth.” Restitution was intended to satisfy a thirst for vengeance as well as to repay losses. These transactions involving goods and money were designed to encourage lasting set- tlements (composition) between the parties that would head off further strife (Schafer, 1970).

In biblical times, Mosaic law demanded that an assailant repay the person he injured for losses due to a serious wound, and required that a captured thief give back five oxen for every one stolen. The Code of Hammurabi granted a victim as much as 30 times the value of any possessions stolen or damaged. Under Roman law, a thief had to pay the victim dou- ble the value of what he stole if he was caught in the act. If he escaped and was caught later, he owed the victim three times as much as he took. And if he used force to carry out the theft, the captured robber had to repay the injured party four times as much as he stole. Under King Alfred of England in the ninth century, each tooth knocked out of a person’s mouth by an aggressor required a different payment, depending upon its location (Peak, 1986).

In colonial America before the Revolution, criminal acts were handled as private conflicts between individuals. Police departments and public prosecutors did not exist yet. A victim in a city could call upon night watchmen for help, but they might not be on duty, or the offender might flee beyond their jurisdiction. If the injured party sought the aid of a sheriff, he had to pay a fee. If the sheriff located the alleged perpetrator, he would charge extra to serve a warrant against the defendant. When the sus- pect was taken into custody, the complainant had to hire a lawyer to draw up an indictment. Then the complainant either prosecuted the case personally or hired an attorney for an additional fee to handle the

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private prosecution. If the accused was found guilty, the person he harmed could gain substantial benefits. Convicted thieves were required to repay their vic- tims three times as much as they had stolen. Thieves who could not hand over such large amounts were compelled to be servants until their debts were paid off. If the victims wished, they could sell these inden- tured servants for a hefty price, and they had one month in which to find a buyer. After that, victims were responsible for the costs of maintaining the offenders behind bars. If they didn’t pay the fees, the convicts were released (Geis, 1977; Jacob, 1977; McDonald, 1977; and Hillenbrand, 1990).

In the years following the American Revolu- tion, the procedures that the British had set up in the colonies were substantially reorganized. Refor- mers were concerned about the built-in injustices afflicting a system in which only wealthy victims could afford to purchase “justice” by posting rewards and hiring sheriffs, private detectives, bounty hunters, and prosecuting attorneys. Crimes were redefined as acts against the state. Settling individual grievances was no longer regarded as the primary function of court proceedings. To pro- mote equal handling and consistency, local govern- ments hired public prosecutors. State agencies built prison systems to house offenders. A distinction developed within the law between crimes and torts. Crimes were offenses against the public and were prosecuted by the state on behalf of “the people.” Torts were the corresponding wrongful acts that harmed specific persons. Criminals were forced to “pay their debt to society” through fines and periods of confinement. But injured parties who wanted offenders to repay them were shunted away from criminal court and directed to civil court, a separate arena where interpersonal conflicts were resolved through lawsuits (McDonald, 1977).

The modern rediscovery of restitution in the United States began in 1967, when the President’s Commission on Law Enforcement and the Admin- istration of Justice recommended the revival of this old practice that had fallen into disuse. Since the 1970s, opinion polls have indicated widespread pub- lic support for its restoration. A greater reliance on restitution also was endorsed by the American Law

Institute, the American Bar Association, the Ameri- can Correctional Association, the National Advisory Commission on Criminal Justice Standards and Goals, the Supreme Court, the National Association of Attorneys General, the Office for Victims of Crime of the Justice Department, and reformist groups such as the National Moratorium on Prison Construction. The Federal Victim/Witness Protec- tion Act of 1982 removed restrictions that had lim- ited restitution to simply a possible condition of probation within the federal judicial system.

Also in 1982, the President’s Task Force on Vic- tims of Crime noted that it was unfair that people suffering serious injuries had to liquidate their assets, mortgage their homes, make do without adequate health care, or cut back on tuition expenses while criminals escaped financial responsibility for the hard- ships they inflicted. The task force recommended that judges routinely impose restitution or else clearly explain their specific reasons for not doing so. The Violent Crime Control and Law Enforcement Act passed by Congress in 1994 made restitution manda- tory in federal cases of sexual assault or domestic vio- lence. The enactment of the Mandatory Victim Restitution Act of 1996 imposed repayment obliga- tions on all violent offenders in the federal system.The Federal Bureau of Prisons created a payment collec- tion program in the late 1980s that many state correc- tional authorities have copied. The growing use of alternative, creative, or constructive sentences reflects the rediscovery of restitution by judges (McDonald, 1988; Leepson, 1982; Harland, 1983; Herrington, 1986; Galaway, 1992; National Victim Center, 1991b; and Office of Justice Programs, 1997).

In the juvenile justice system, restitution has been ordered more often and for a longer period of time. The oldest existing repayment program for people who have been harmed by delinquents was initiated in Florida in 1945. The earliest community service program was set up in South Dakota in 1965. A Min- nesota program established in 1972 was the first to allow youthful offenders to perform direct services for victims instead of paying them in cash. It also pioneered the use of mediation sessions between the two parties to foster a spirit of reconciliation. Hundreds of juvenile restitution projects were set up during the 1970s and

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1980s (Warner andBurke, 1987; Klein, 1997;Roberts, 1998; and Bradshaw and Umbreit, 1998).

Divergent Goals, Clashing Philosophies

Even though support for restoring restitution to its rightful place in the criminal justice process is grow- ing, its advocates do not agree on priorities and pur- poses. Some advocates have been promoting this ancient practice as an additional form of punish- ment, while others tout it as a better method of rehabilitation. Still other champions of restitution emphasize its beneficial impact on the financial well-being of victims and its potential for resolving interpersonal conflicts. As a result, groups with divergent aims and philosophies are all pushing res- titution, but are pulling at established programs from different directions (see Galaway, 1977; Klein, 1997; and Outlaw and Ruback, 1999).

Restitution as a Means of Repaying Victims Those who advance the idea that restitution is primarily a way of helping victims (see Barnett, 1977; and McDonald, 1978) argue that the punitively oriented criminal justice system offers victims few incentives to get involved. Those who report crimes and cooperate with the police and prosecutors incur additional losses of time and money for their trouble (for example, from missing work while appearing in court). They also run the risk of suffering reprisals fromoffenders. In return they get nothing tangible, only the sense that they have discharged their civic duty by assisting in the apprehension, prosecution, and conviction of a dangerous person—a social obligation that goes largely unappreciated. The only satisfaction the system provides is revenge. But when restitution is incorpo- rated into the criminal justice process, cooperation really pays off.

If the primary goal of restitution is to ensure that victims are repaid, then they should be able to directly negotiate arrangements for the amount of money and a payment schedule. Reimbursement should be as comprehensive as possible. The criminal ought to pay back all stolen cash plus the current replacement value of lost or damaged possessions, outstanding medical bills from crime-related injuries

(including psychological wounds attended to by therapists), wages that were not earned because of absence from work (including sick days or vacation time used during recuperation or while cooperating with the investigation and prosecution), plus crime- related miscellaneous expenses (such as the cost of renting a car to replace one that was stolen or the cost of child care when a parent is testifying in court). Repayment on the installment plan should begin as promptly as possible because victims must foot the entire bill in the interim.

Restitution as aMeans of RehabilitatingOffenders Advocates of restitution as a means of rehabilitation (see Prison Research, 1976; and Keve, 1978) argue that instead of being punished, wrongdoers must be sensitized to the disruption and distress that their illegal actions have caused. By learning about their victims’ plights, they come to realize the injurious consequences of their deeds. By expending effort, sacrificing time and convenience, and performing meaningful tasks, they begin to understand their personal responsibilities and social obligations. By making fiscal atonement or doing community ser- vice, they can feel cleared of guilt, morally redeemed, and reaccepted into the fold. Through their hard work to defray their victims’ losses, offenders can develop a sense of accomplishment and self-respect from their legitimate achievements. They may also gain marketable skills, good work habits (such as punctuality), self-discipline, and valuable on-the-job experience as they earn their way back into the community.

If restitution is to be therapeutic, offenders must perceive their obligations as logical, relevant, just, and fair. They must be convinced to voluntarily shoulder the burden of reimbursement because it is in their own best interest as well as being “the right thing to do.” However, offenders probably will define their best interests as minimizing any penalties for their lawbreaking. This includes minimizing pay- ments to injured parties, even if restitution is offered as a substitute for serving time behind bars. Offenders most likely will underestimate the suffering they have inflicted, while those on the receiving end may tend to overestimate their losses and want to

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extract as much as they can (see McKnight, 1981). The sensibilities of wrongdoers must be taken into account, because their willingness to make amends is the key to the success of this “treatment.”

Restitution as a Means of Reconciling Offenders and Their Victims Some advocates of restitution view the process primarily as a vehicle for reconcilia- tion. After offenders have fully repaid the individuals they hurt, hard feelings can dissipate. Also, reconcili- ation between two parties who share responsibility for breaking the law can be achieved after face- to-face negotiations. In situations without a clearly designated wrongdoer, restitution might be mutual, with each of the disputants reimbursing the other for damages inflicted during their period of hostility. Both parties have to consider the restitution agree- ment to be fair and constructive if a lasting, peaceful settlement is to emerge. (The philosophy and oper- ating principles of restorative justice, which relies heavily on restitution, are discussed in Chapter 13.)

Restitution as a Means of Punishing Offenders Those who view restitution primarily as an addi- tional penalty (see Schafer, 1977; and Tittle, 1978) argue that for too long offenders have been able to shirk this financial obligation to their victims. First, convicts should suffer incarceration to pay their debt to society. Next, they should undertake strenuous efforts to repay the specific individuals they harmed. Only then can their entanglement with the criminal justice system come to an end.

Reformers who promote restitution as a means of repaying victims, as a way of rehabilitating offen- ders, or as the basis for bringing about mutual recon- ciliation can come into conflict with crime control advocates who view restitution as an additional means of punishment and deterrence. The problem with imposing restitution as an extra penalty follow- ing incarceration is that it delays repayment for many years. Because few convicts can earn decent wages while behind prison walls, the slow process of re- imbursement cannot begin until their period of confinement is over, either when the sentence expires or upon the granting of parole. When punishment takes priority over reimbursement, the

victims’ financial needs, the offenders’ therapeutic needs, and the community’s need for harmony are subordinated to the punitive interests of the state. As long as prison labor remains poorly paid, restitution and incarceration will be incompatible.

The major argument against the centrality of victim reimbursement is that the operations of the criminal justice system are intended to benefit soci- ety as a whole, and not just the injured party. Other considerations should come first: punishing crim- inals harshly to teach them a lesson and to deter would-be lawbreakers from following their exam- ple; treating offenders in residential programs so that they can be released back as rehabilitated and productive members of the community; or incapac- itating dangerous persons by confining them for long periods of time. Subordinating these other sentencing objectives to restitution would reduce the legal system to a mere debt collection agency catering to victims, according to a 1986 Supreme Court decision (Triebwasser, 1986).

Opportunities to Make Restitution

Restitution is an extremely flexible sanction that is not being used to its full potential. It can be applied at each stage in the criminal justice process, from the immediate aftermath of the crime up until the final moments of parole supervision following a period of imprisonment. Figure 12.1 illustrates how restitution can be an option at every decision-making juncture.

As soon as a suspect is apprehended, an informal restitution arrangement can settle the matter. For example, a storekeeper might order a shoplifter to put the stolen item back on the shelf and never return to the premises, or parents might offer to pay for their son’s spray painting of a neighbor’s fence. In most states, however, serious offenses cannot be resolved informally. It is a felony for a victim to demand or accept any payment as “hush money” to cover up a major violation of the law, in return for not pressing charges, or as a motive for discontinuing cooperation with the authorities in an investigation or prosecu- tion. A criminal act is an offense against the state in addition to a particular person and cannot be settled privately (Laster, 1970).

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After a suspect is arrested, a restitution agree- ment can be worked out as an alternative to prose- cution (diversion). If a defendant is indicted, the district attorney’s office can make restitution a con- dition for dismissing formal criminal charges. Once prosecution is initiated, restitution can be part of a plea bargain struck by the defense lawyer and the district attorney, wherein the accused concedes guilt in return for lesser penalties. Restitution is particularly appropriate as a condition of probation or of a suspended sentence. If incarcerated, an inmate can try to begin to repay the injured party from the meager wages he earns from labor in prison, but he will be more capable of putting money aside if he gets a real job while he is on work release or when he resides at a halfway house. After serving time, restitution can be included as a condition of parole. Restitution con- tracts can be administered and supervised by various

parties concerned about the crime problem: com- munity groups, private and nonprofit charitable and religious organizations, juvenile courts, adult crimi- nal courts, probation departments, corrections departments, and parole boards.

Yet as promising as restitution seems to be, it is not the answer formost victims. Only a small percent- age will ever collect anything. The problem is directly parallel to the quest for emotional satisfaction from retribution. Just as most criminals escape punishment, most also evade restitution. The phenomenon of case attrition has been labeled funneling, or shrinkage, and has been likened to a “leaky net.” At the outset, many cases seem appropriate for restitution. But at the end of the criminal justice process, only a relative handful of injured parties receive even partial restitu- tion. All the other cases (and offenders) have slipped through holes in the net. Figure 12.2 explains how and why so many “escape” their financial obligations.

Crimes committed

Crimes not reported by victims to the authorities

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Criminals not arrested (cases not solved)

Criminals not indicted

Criminals not prosecuted

Criminals not convicted

Criminals not able to make restitution

Criminals not willing to make restitution

Victims not willing to accept restitution

Criminals who don’t repay their victims

Criminals who repay their victims

F I G U R E 12.2 Case Attrition, Funneling, or Shrinkage: The Leaky Net

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First of all, a large number of offenders will never have to make amends because their victims do not report the incidents to the police (refer back to Table 6.1). Next, the majority of offenders get away with their crimes because the police cannot figure out who the perpetrators are (clearance rates are especially low for the most numerous property crimes: burglaries, car thefts, and other forms of stealing; see Table 6.3). Hence, right away most of the people who have suffered harm already have been eliminated from any chance of receiving reimbursement. For example, only about one-half of all robberies are reported, and only one-quarter are solved, so only one out of eight robbery cases enters the system.

Of the relatively small number of crimes that are solved by an arrest, additional problems can arise dur- ing the adjudication process. The overwhelming majority of cases (upwards of 90 percent in many jur- isdictions) are resolved through plea negotiations that involve dropping charges or counts. Many complai- nants are eliminated from consideration if offenders do not admit to hurting them. Some cases that go to trial result in acquittals, and some convictions are reversed on appeal. Of those who are convicted or who plead guilty,many are unwilling or unable to shoulder finan- cial obligations. Judgesmay not order convicts to repay the people they harmed. Inmates usually cannot earn substantial amounts of money. Prisoners granted parole have trouble finding any work, let alone a job that pays enough to allow them to set asidemeaningful amounts after all their other deductions.

Finally, many jurisdictions lack both a tradition of ordering restitution and a mechanism for moni- toring and enforcing such arrangements. Actually collecting the funds in a timely manner remains a major challenge for victims (Harland, 1983; McGillis, 1986; and Davis and Bannister, 1995).

Obstacles Undermining Restitution

Economic realities limit the ability of many convicts to meet their restitution obligations. Because the street crime problem is in large part an outgrowth of poverty and the desperation it breeds, restitution obligations collide with competing claims for the

same earnings. Ex-offenders have more pressing expenses and other debts. Furthermore, restitution is predicated on work that pays a living wage. Offenders must have, must be helped to find, or must be given reasonably well-paying jobs. These jobs need to pay far more than the minimum wage to permit installments for victims to be deducted from total after-tax earnings. But the U.S. economy cannot provide decent jobs for all who want to earn a living, even during the best of times.

Many dilemmas arise when restitution obliga- tions are considered within the context of intense competition for the limited number of well-paying jobs convicts are capable of doing. If a position is found or created for an ex-offender, then the pro- spects for the successful completion of the restitu- tion obligation are increased. Otherwise, the victims of down-and-out street criminals are denied a real chance to get repaid. If the job pays low wages, then the repayment process cannot be com- pleted within a reasonable amount of time. If nearly all of the ex-offender’s earnings are confiscated and handed over to the victim, that would jeopardize the wrongdoer’s commitment to the job and to repaying the debt. If the job is demeaning, then its therapeutic value as a first step in the direction of a new lifestyle built on productive employment is lost. If the job is temporary and only lasts for the duration of the restitution obligation, then the risk of returning to a career of crime is heightened.

But if a job found or created for an ex-offender is permanent and pays well, then some observers might object that criminals are being rewarded, not punished, for their misdeeds. Law-abiding peo- ple desperately seeking decent jobs will resent any policy that seems to put offenders at the front of the line. Trade union members rightfully will fear that convict labor could replace civilian labor over the long run. But if inmates are put to work in large- scale prison industries, then business interests and labor unions justifiably will complain about unfair competition. If adolescents owing restitution are too young to receive working papers, then a job in private industry would violate child labor laws. Only unpaid community service would be permissible—but then victims get nothing.

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When the injured parties are hard-pressed to make ends meet, restitution seems appropriate and fair. But if indigent offenders must hand over money to affluent victims, then restitution smacks of exploitation—taking from the poor and giving to the rich. Conversely, if prosperous offenders (such as white-collar criminals) are allowed to pay off their obligations from their bank accounts and not with hard work, it will appear that they are buying their way out of trouble. If poor people are kept behind bars and denied the opportunity to make restitution as a condition of probation or parole because they lack marketable job skills, such discrimination against an entire class of people seems to be a violation of the equal protection clause of the Fourteenth Amendment.

Yet in jurisdictions where the criterion for release from confinement was a perceived ability to repay, a typical participant in a restitution program turned out to be a white, middle-class, first-time property offender, and the most common recipient of reimbursement was a business, studies showed (see Galaway and Hudson, 1975; Edelhertz, 1977; Hudson and Chesney, 1978; Gottesman and Mountz, 1979; Harland, 1979, 1981a; and Outlaw and Ruback, 1999).

Restitution in Action

Courts in every state now have the authority to order restitution. Victims are promised a right to restitution in some states that have adopted pro- victim constitutional amendments. In many states,

judges are supposed to impose restitution obliga- tions on convicts whenever possible and if appro- priate, unless there are compelling or extraordinary circumstances (which must be entered into the record in writing). Restitution should routinely be part of the sentence after either negotiated pleas or trials. Often, judges are specifically directed to order reimbursement in cases of child abuse, elder abuse, domestic violence, sexual assault, identity theft, drunk driving, and hate crimes. The repayment can cover outlays for medical expenses, counseling bills, replacing property that was damaged or destroyed, lost wages, other direct costs, and even funeral expenses (National Center for Victims of Crime, 2002d).

Statistics compiled by the federal government shed light on the actual rate of ordering convicts to make restitution in state courts around the country. The national data compiled in Table 12.1 reveals that, in general, judges have not been imposing restitution obligations on most offenders. Judges ordered felons to repay their victims in addition to another sentence (usually a term of incarceration, but sometimes a fine or compulsory treatment) in only a fraction of all convictions for either violent crimes or property crimes. Restitution was part of the sentence in a larger percentage of felony con- victions for burglary, larceny, motor vehicle theft, and fraud than it was for murder, rape and other sexual assaults, robbery, and aggravated assault. Peo- ple who commit fraud are the most likely to have to pay back their victims (who might be businesses rather than individuals). Murderers are the least

T A B L E 12.1 Percentages of Convicted Felons Sentenced to Restitution as an Additional Penalty in the 75 Largest Jurisdictions Nationwide, Selected Years, 1996–2006

1996 1998 2000 2002 2004 2006

Convicted for: Murder 9 10 11 7 14 13 Rape and sexual assault 9 11 11 10 16 18 Robbery 11 13 13 10 16 18 Aggravated assault 14 14 13 11 15 18 Burglary 21 23 24 20 24 27 Larceny 22 21 25 19 26 26 Vehicle theft 22 21 27 19 37 28 Fraud 32 29 31 24 30 29

SOURCES: BJS, 2008c; and Rosenmerkel et al., 2010.

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likely of all felons to be forced to take financial responsibility for the losses they inflicted (presum- ably to the families of the people they killed).

As for changes over time, the imposition of restitution by judges may have been creeping upward during the late 1990s but slipped backward during 2002. However, by 2006, the ordering of repayment in state courts rebounded and reached new highs that surely were still disappointingly low to those who firmly believe in restitution as an important component of criminal justice. The trends in Table 12.1 were derived from a court monitoring system operated by the Department of Justice that tracks dispositions in nearly one million cases every two years in the nation’s 75 largest jur- isdictions (see Langan and Graziadei, 1995; Durose, 2004; BJS, 2008c; and Rosenmerkel et al., 2010).

Another set of figures from this federal database is worth examining for national trends (see Table 12.2). In theory, making restitution is more feasible if a con- vict is on probation rather than behind bars. In prac- tice, restitution doesn’t materialize most of the time. Of felons whowere fortunate enough to be sentenced to probation for violent acts, only about 1 in 7 was ordered by a judge in state court to try to reimburse those they harmed as one of the conditions they must obey; and in 2006 this fraction plunged to merely 1 in 11. Felons on probation for property crimes make restitution at a higher rate. But the direction of drift once again seems downward, from two-fifths of all probationers working off their debt in 1996 down to only roughly one-fourth in 2006. This backward trend over more than 20 years toward disuse in both violent and property crimes (seemingly the easiest and most appropriate cases), rather than forward toward greater use, is another disappointment to people who believe in the appropriateness of restitution.

The three most frequently cited reasons for judges failing to impose restitution all fault victims: they didn’t request reimbursement, they failed to document their losses, or they were unable to cal- culate their exact expenses. Often, judges felt that restitution obligations would be inappropriate if convicts also had to “repay society” by serving time behind bars or if they had a very limited potential to earn a living wage.

Despite these obstacles, limitations, conflicting priorities, dilemmas, and ironies, restitution is under way in many jurisdictions. Probation departments run most supervision and collection programs (75 percent) (Office of Juvenile Justice and Delin- quency Prevention, 1998b).

When criminologists and victimologists evaluate the effectiveness of these programs, the challenge is to identify the specific goals and to devise appropriate criteria to measure degrees of success and failure. Victim-oriented goals involve making the injured parties whole again by enabling them to collect full reimbursement and to regain peace of mind (recovery from emotional stress and trauma). Offender-oriented goals are achieving rehabilitation and avoiding recidivism. System-oriented goals include reducing case processing costs, relieving tax- payers of the financial burden of compensating peo- ple who have been harmed, alleviating jail and prison overcrowding through alternative sentences, and improving citizen cooperation by providing material incentives to injured parties for participating in the criminal justice process. So many different aims and touted benefits coexist that no sweeping conclusions can be drawn about the effectiveness of the programs now in operation (for example, see McGillis, 1986; Butts and Snyder, 1992; Jacobs and Moore, 1994; and Davis, Smith, and Hillenbrand, 1992).

T A B L E 12.2 Percentage of Convicted Felons Placed on Probation Who Have Restitution Obligations in the 75 Largest Jurisdictions Nationwide, Selected Years, 1994–2006

1994 1996 2000 2002 2004 2006

On Probation for: Violent crimes 15 15 14 15 15 9 Property crimes 34 40 33 32 26 24

SOURCES: Reaves, 1998; Hart and Reaves, 1999; Rainville and Reaves, 2003; Cohen and Reaves, 2006; Kycklehahn and Cohen, 2008; and Cohen and Kycklehahn, 2010.

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To improve the chances that convicts will make at least partial restitution, notification laws could be strengthened to ensure that victims are advised of their rights. Prosecutors could bear the routine responsibility of requesting restitution, or restitution could be considered mandatory unless the judge specifically excuses the offender from this obligation. Pre-sentence investigation reports and victim impact statements could be used as a stan- dard form to document claims for repayment (NCVC, 2002c). To better enforce restitution orders, judges could routinely investigate the assets of convicts before crafting a workable payment plan. To decrease the likelihood of default, prosecutors could obtain injunctions to prevent defendants from hiding or quickly spending their assets (cash, savings, investments, homes, vehicles, valuable possessions), and probation and parole departments could more closely monitor these court-ordered payments, and either revoke or extend periods of probation and parole if the convict willfully refuses to make timely payments. The money to be handed over can be deducted from inmates’ wages from prison labor, state and federal income tax refunds, lottery winnings, inheritances, trust accounts, and collateral used for bail. If convicts default, private collection agencies can be called, and unpaid bal- ances can be converted into civil judgments enforced by seizures of property by sheriffs’ departments (NCVC, 2002b).

However, for those who become impatient and dissatisfied with criminal-court-ordered restitu- tion, another avenue for reimbursement can be pursued: lawsuits in civil court.

WINNING JUDGMENTS IN CIVIL COURT

The Revival of Interest in Civil Lawsuits

A famous retired football player is put on trial for the murder of his ex-wife and her friend, but he is acquitted by a jury that is not convinced of his guilt beyond a reasonable doubt by the prosecution’s extensive but extremely complicated

forensic evidence. The outraged families of the murder victims sue him in civil court. A jury finds him liable for the wrongful deaths and awards the two families more than $33 million in compensatory and punitive damages. When he announces that he is writing a book entitled “If I Did It, Here’s How It Happened,” the two families are divided over whether to go after the royalties to speed up the slow payment of the judgment. Thirteen years to the day after he was acquitted of murdering his former wife, he is convicted of taking part in an armed robbery of sports memorabilia by a group of men in a hotel room and is sentenced to prison. He appeals the conviction, arguing that his attorneys were improperly barred from asking prospective jurors about their knowledge of his previous acquittal in criminal court and the subsequent judgment against him in civil court, but his lengthy sentence is upheld. (Ayres, 1997; and Martinez, 2010)

■ ■ ■

The wife of a well-known television and movie star is shot while she sits in their car outside of a restaurant. He is put on trial but acquitted. The district attorney angrily brands him, “guilty as sin” and denounces the jury as “incredibly stupid.” The wife’s four grown children decide to sue the actor in civil court, contending that either he killed her himself or hired someone to do it. Although he did not testify at his murder trial, he is compelled to take the stand and answer questions in civil court. Ten of the twelve jurors conclude that he was involved in the slaying, and the judge orders him to pay $30 million to his dead wife’s four children. He declares bankruptcy and appeals the judgment. Several years later, a judge halves the damages he owes her children but rules that the jury did not act improperly when it discussed “sending a message” to celebrities that they can’t get away with murder or molestation, as they may have in other cases. (Associated Press, 2005; BBC, 2008; and Morrison, 2010)

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A growing number of victims are no longer content to just let prosecutors handle their cases in criminal court, especially if convictions are not secured. They have discovered that they can go after their alleged wrongdoers and pursue their best interests in a different arena: via a lawsuit in civil court.

Criminal proceedings are intended to redress public wrongs that threaten society as a whole. As a result, the economic interests of injured parties seeking restitution from convicts routinely are sub- ordinated to the government’s priorities, whether probation, incarceration, or execution. Injured parties seeking financial redress are directed to civil court. There they can launch lawsuits designed to remedy torts—private wrongs—arising from violations of criminal law. Under tort law, plaintiffs (victims) can sue defendants and win judgments for punitive damages (money extracted to punish wrongdoers and deter others) as well as compensatory damages (to repay expenses).

Activists in the victims’ movement like to call attention to these often-overlooked legal rights and opportunities. Guilty verdicts in criminal courts cost offenders their freedom; successful judgments in civil courts cost offenders their money. Lawsuits can be successful even if charges are not pressed or if the alleged perpetrator is found not guilty after a trial in criminal court. Centers for legal advo- cacy and technical assistance have sprung up in many cities to make lawsuits an occupational hazard and a deterrent for habitual criminals (Barbash, 1979; Carrington, 1986; Carson, 1986; and National Victim Center, 1993).

The Litigation Process

Civil suits can involve claims for punitive damages as well as compensatory and pecuniary damages. Awards for compensatory damages (repayment of expenses) and pecuniary damages (to cover lost income) are supposed to restore victims to their for- mer financial condition (make them “whole” again). They can receive the monetary equivalent of stolen or vandalized property, wages from missed work, projected future earnings that won’t materialize

because of injuries inflicted by the offender, and out- lays for medical and psychiatric care (hospital bills, counseling expenses) plus recompense for physical pain and mental suffering (resulting from loss of enjoyment, fright, nervousness, grief, humiliation, and disfigurement). Punitive damages might be lev- ied by the court to make negative examples of law- breakers who deliberately act maliciously, oppressively, and recklessly (Stark and Goldstein, 1985; and Brien, 1992).

In civil courts, victims and their kin can sue offenders for certain intentional torts. Wrongful death suits enable survivors to collect compensa- tion for the loss of a loved one without justification or legitimate excuse and for assault, which covers acts sufficiently threatening to cause fear of imme- diate bodily harm. Suits for battery involve inten- tional, harmful, physical contact that is painful, injurious, or offensive. Suits charging trespass cen- ter upon the intentional invasion of another per- son’s land. Conversion of chattel suits accuse defendants of knowingly stealing or destroying the plaintiffs’ possessions or property through theft or embezzlement. Suits alleging false imprisonment contend that the offender held the plaintiff against his or her will, even if for a brief period of time, such as during a hostage taking or rape. Charges of fraud can arise from white-collar crimes if inten- tional misrepresentation and deception can be established. Finally, suits can allege that the defen- dant intentionally or recklessly inflicted emotional distress through extreme or outrageous conduct, such as by stalking the plaintiff (Stark and Goldstein, 1985; Brien, 1992; and National Crime Victims Bar Association, 2007).

Civil actions commence when the plaintiff (also called the second party) formally files a com- plaint (also referred to as a pleading). This docu- ment includes a brief statement of the legal jurisdictional issues, a summary of the relevant facts of the case (the causes of action that show how the harm to the victim was a “direct and prox- imate result” of the alleged wrongdoer’s behavior), and a request for relief for the injuries and damages sustained (monetary compensation). The victim’s attorney brings the complaint to civil court and

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pays a fee. A deputy sheriff (or a privately retained process server) must physically hand this written document to the defendant (also called the first party), along with a summons requiring a response to the allegations within a stated period of time (usually one month). The accused wrongdoer sub- mits an answer either admitting to the charges or, more likely, contesting them and issuing a defense (or perhaps even launching a countersuit).

In preparing for a trial to resolve the competing claims, both parties engage in a process called dis- covery, in which they exchange written replies to questions, documents, and sworn statements of eye- witnesses (including police officers). Just as in crim- inal proceedings, the typical outcome is a negotiated compromise agreement. But if an out- of-court settlement cannot be reached, the accused exercises his Seventh Amendment right to a trial, and the injured party has to prove the allegations in court. After considerable delays because of con- gested court calendars, the trial is held before twelve (or, in some states, six) jurors or perhaps only in front of a judge (Stark and Goldstein, 1985).

In civil proceedings, the defendant in third- party lawsuits is likely to allege contributory negli- gence (the injured party was partly responsible for what happened). In battery cases, the rebuttal might be victim provocation (leading to responses neces- sary for self-protection). In other lawsuits, the defense might argue that the plaintiff knowingly and voluntarily “assumed the risk”; for example, a woman alleging rape was drinking heavily and agreed to go to the man’s apartment (Stark and Goldstein, 1985; and National Crime Victims Bar Association, 2007).

Following opening statements presented by attorneys for each side, witnesses testify and are cross-examined, and physical evidence is intro- duced. Interrogatories (lists of questions for the other side to answer), depositions (answers to the opposing lawyer’s questions), and requests for documents may generate important evidence. Then each party’s attorney sums up, and the jury retires to deliberate. The jury votes and then ren- ders its verdict on which of the two versions of

events seems more truthful. The jury awards com- pensatory and perhaps punitive damages if it finds for the plaintiff and rejects the defendant’s argu- ments. The losing party is likely to appeal the deci- sion, and a higher court can overturn the trial court’s verdict if errors in procedural law are dis- covered or if the jury acted contrary to the evi- dence. Appeals may take many years to be resolved (Stark and Goldstein, 1985).

Litigation in civil court usually follows rather than precedes adjudication in criminal court. Peo- ple who have been badly hurt usually wait to pro- ceed with litigation because the evidence that is introduced during the criminal proceedings can be used again in the lawsuit and generally is sufficient to establish that a tort occurred. Furthermore, if the civil action is filed too early, the defense attorney will use this fact to try to undermine the complai- nant’s credibility as a witness for the prosecution, claiming that the testimony is motivated by poten- tial financial gain. But if the civil action is not filed for years, the statute of limitations might run out, and it will be too late to sue the defendant. For example, in most states, lawsuits alleging assault must be filed within two years, before complai- nants’ and defendants’ memories fade and material evidence is lost or destroyed (Brien, 1992).

Possibilities and Pitfalls Injured parties who are considering civil litigation must weigh the advan- tages and disadvantages of this course of action. One reason civil lawsuits are relatively uncommon is that most victims conclude that the benefits are not worth the costs. In addition, many people are unfamiliar with this option.

Civil lawsuits have several attractions. First and foremost, victims can seize the initiative, haul their assailants into court, bring them to the bar of jus- tice, and sue them for all they can get. In criminal cases, prosecutors exercise considerable discretion and make all the important decisions, even in jur- isdictions where victims have the right to be informed and consulted. In civil cases, victims can regain a sense of control and feel empowered. They are principal figures entitled to their day in court, are aware of all the facts surrounding the case, and

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can’t be excluded from the courtroom. It is up to them to decide whether to sue and whether to accept a defendant’s offer of an out-of-court settle- ment. (In small-claims courts, plaintiffs don’t even need an attorney. They can present their own cases using simplified procedures designed to expedite trials, because not much money is at stake).

Plaintiffs seeking large awards must hire attor- neys of their own choosing and can participate in developing a strategy and preparing the case in anticipation of the trial. Victims can achieve full reimbursement, perhaps even more money than they lost, through lawsuits. They can collect punitive damages far in excess of actual out- of-pocket expenses, and can receive compensation for the mental pain and emotional suffering they endured. Defendants’ assets, including homes, cars, savings accounts, investments, and inheritances, can be attached (confiscated), and their wages can be garnished. Most attorneys practicing civil law accept cases on a contingency basis and don’t charge a fee unless they win. Suits can be brought by the victims’ family (parents, children, spouse, or sib- lings) if an injured party is too young, mentally incapacitated, or dies (Stark and Goldstein, 1985; Brien, 1992; and National Crime Victims Bar Association, 2007).