How Victim Restitution Can Affect Your Criminal Case
One of the most taxing and vexing issues of any criminal conviction is victim restitution. There are several reasons why victim restitution is so taxing.
The first reason victim restitution is so bothersome is that victim restitution is not affected by the bankruptcy code. Victim restitution imposed either at the time of sentencing or as a condition of probation is not dischargeable in bankruptcy proceedings. Victim restitution will haunt a criminal defendant until the amount is paid off or the death of the defendant.
A second reason why victim restitution is troublesome is that victim restitution is considered a money judgment. If certain conditions are met, a restitution order, (money judgment), can be enforced as a civil judgment and all the collections procedures available in civil matters such as debtor’s examinations and wage garnishments can be used to collect a victim restitution order.
Third and lastly, a defendant’s inability to pay restitution is not considered a compelling and extraordinary reason not to impose a restitution order, nor is the inability to pay a factor to be considered by the court in determining the amount of a restitution order.
Victim restitution is embedded in both the California State’s Constitution and California statutory law. The California Constitution states:
It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer. Restitution shall be ordered from the convicted persons in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss unless compelling and extraordinary reasons exist to the contrary.
California Penal Code Section 1202.4 as it relates to victim restitution states in relevant part: “It is the intent of the Legislature that a victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime.”
If a victim has suffered any economic loss as a result of criminal conduct the court is required to order the defendant to make restitution in an amount established by the court. At one time, a victim was narrowly construed. However, over time the appellate courts have expanded the definition to include not only a direct victim but, the victim’s spouse, child, parents, siblings and the guardian of the victim. A governmental agency can also be considered a victim.
If a court fails to impose restitution at the time of sentencing the sentence imposed by the court is invalid. Even if the amount of restitution is unknown or the amount cannot be determined at the time of sentencing, the court must reserve jurisdiction over the defendant to order victim restitution when the amount is determined.
A defendant has a right to a hearing on the amount of restitution to be ordered by the court. However, the evidentiary standards for proof of loss suffered by the victim are very low and almost nonexistent.
In favoring the victim courts have held that at a restitution hearing there is no right to a jury trial and there is no right to confront and cross-examine witnesses presenting evidence in support of a restitution order. Further, a defendant has no right to cross-examine any witness, including experts or medical personnel, whose fee makes up the restitution order. The court can also consider hearsay evidence when determining the amount of restitution to order. To prove the amount of economic loss suffered by a victim, the victim can simply submit a verbal or written unsubstantiated claim. In the alternative, a victim can submit estimates establishing the amount of restitution to be ordered.
The definition of economic loss, as with the definition of victim, has been expanded and distorted by the appellate courts. Economic loss encompasses, damaged or lost property, medical and counseling expenses, wages or lost profits, relocation expenses and the cost associated with a victim’s relocation such as deposits for utilities and telephone service, deposits for rental housing, temporary lodging, food expenses, clothing, and personal items. A defendant may also be required to reimburse a victim for the appreciation in the value of certain property items. For example, if the value of stocks increased after the crime or loss, the defendant will be responsible for reimbursing the victim for any increased value of that stock.
In addition, and to compound the victim restitution issue, an order imposing restitution is subject to interest at the rate of 10% per annum from the date of loss or the date of sentencing at the judge’s discretion.
If you have been convicted of a crime and are facing a possible victim restitution order do not waive your right to the evidentiary hearing. Although the evidentiary standards are low at the restitution hearing, it is not impossible to mount a successful challenge to a victim’s claims.