So there’s this idea called restitution that you may have heard of, but don’t care that much about. The dictionary definition has to do with restoring something to its original state.
People don’t really use the word that way, though. They don’t say things like “I’m so glad the new owners are enacting restitution of that historic house.” Nope, people use the word in relation to laws, criminal defendants, and courts.
What is Restitution?
Restitution means that convicted defendants are supposed to pay money to the victims of their crimes. Restitution is supposed to restore the crime victims to their original state.
Now this is an interesting idea on several levels. One level is the idea that a crime victim can be restored to their original state. If someone steals your car, wrecks it, gets caught, goes to trial, gets convicted and then is compelled by the court to pay restitution – is that going to restore you to your original state?
Of course not. In your original state, your car hadn’t been stolen and you hadn’t experienced any of the emotions or thoughts or experiences that occur after your car is stolen. Someone giving you $30K for your stolen car isn’t going to restore you to your original state.
Having $30k to replace your car is better than not having $30k to replace your car – don’t get me wrong. But it isn’t going to restore you to your original state.
How do Criminal Defendants Pay Restitution?
Ha! Most of the time they don’t really.
If they’re a gigantic car theft ring stealing $22 million worth of cars in California and shipping them to Arizona to be stripped for parts, then some of the criminal defendants may have a lot of money. They may have enough money that it would certainly seem just to have those rich criminals pay back all the poor people they stole cars from. I would be in favor of that. You would be in favor of that.
The rich criminal defendants would NOT be in favor of that. Most people who go to all that trouble to get rich don’t really like economic justice. It’s not in their interests. These rich defendants are likely to do everything they can to avoid coughing up cash for their victims. They’ll hide the money using various stratagems. They’ll slow-roll and delay. They’ll cry poverty.
The chances that all of the people who got their cars stolen by the car theft ring will get their money back from the criminals aren’t zero. But they’re not very high either.
And most criminal defendants, most of the time, didn’t haul in 22 million dollars. A random drug dealer stealing your car may have hauled in 22 thousand dollars. But not 22 million. And if that random drug dealer is supposedly compelled by the court to pay you 30 thousand dollars for your stolen car – that random drug dealer is not going to have 30 thousand dollars to pay you. Sadly perhaps, for a nation that values money so much, often wrongdoers don’t get any richer by doing wrong against you.
Why should individual criminals pay restitution when large-scale companies almost never do? Companies that pollute don’t pay restitution. They cause a lot of harm, but they don’t pay restitution. Very frequently they make messes that they don’t clean up, but they end up paying jack. If restitution is an idea applied to individuals – why isn’t it applied to companies more often as well?
And yet, restitution is apparently mandatory in California and other states when a crime involves an economic loss. Restitution is also a part of federal law. Yup, judges are required to order restitution as part of an individual’s sentence.
Restitution Becomes a Lose-Lose-Lose Situation
In most cases, though, restitution is just a lose-lose-lose situation. If a convicted criminal doesn’t make restitution payments, the court can change the payment schedule or impose additional penalties. But the court cannot make the money actually appear in the crime victim’s bank account.
Donald Trump and Alex Jones and the Sacklers of Purdue Pharma and companies who’ve been sued and lost have all been ordered by the court to pay people. People ain’t been paid!
And these are cases where there is actually money available that could be paid. You can stack up the penalties on that random drug dealer til the end times and that still doesn’t mean you’re going to get any money for your stolen car.
Believe it or not, you’re more likely to get money from your car insurance company (if you had a policy that includes comprehensive) than from a convicted criminal. I mean, if you left your keys in the car and the engine running maybe not. But it is more likely that your auto insurance company has a lot of money than that the criminal who stole your car has a lot of money.
Of course, the court can potentially use wage garnishment to get its hands on the convicted criminal’s money. So that’s helpful. EXCEPT THAT THE CONVICT ISN’T EARNING ANY WAGES.
If the convict is in prison, you are not going to get your 30K on from prison pay. Don’t even get started thinking about that.
If your convict is not in prison, your convict is not earning enough in wages to pay for your car. Hellfire, many people who do not have criminal records aren’t getting paid enough in wages to pay for your car. Have you heard about the homeless problem in the US? People aren’t getting paid enough to live indoors let alone enough to pay for your car.
That’s if the convict is able to earn any wages at all. The system has stacked itself against convicts trying to re-enter the job market. So good luck with that wage garnishment thing.
Liens and Fines
The court can also place liens against property or levy fines. Wonderful if the convicted criminal in question has property worth placing a lien against. Or if the criminal is sitting on piles o’money to pay fines with. Guess who most often doesn’t have either of these things? PEOPLE CONVICTED OF CRIMES.
Restitution requirements can even extend to things that don’t seemingly have much of an economic component – like your neighbor punching you in the face because he doesn’t like you walking past his house while he’s out watering the roses in his underwear. You punch him back and both of you end up charged with assault. You could be ordered to pay restitution to each other.
I mean, someone steals jewelry from your house, embezzles funds from your company or shoplifts from your store. Restitution might work. Give the jewelry back. Pay back the money you stole from your employer. And return the gift cards you swiped from Target.
But the reality of restitution is not like that:
…restitution is still a huge burden on people and their families,” says Stephanie Campos-Bui ’14, assistant clinical professor of law and director in the [Berkeley Law] clinic.
She means it’s a huge burden on the people who are supposed to pay it. But it’s actually a huge pain in the ass to everyone involved.
Still, some people, because it’s just their nature, will oppose any sort of change to an existing legal framework. They’ll say things like ‘what about the crime victims who should get this financial support?’
Support for Crime Victims
It would certainly be nice to support people who have survived various types of crimes. Especially since the criminal justice system currently doesn’t. But restitution policies as they exist right now don’t benefit victims of crime any more than they benefit anyone else – including the taxpayers who pay for all this supposed criminal justice.
If we’re going to be honest (never a good idea in matters of public politics), most of the convicted criminals who are supposed to be paying restitution should be getting restitution as well. They’ve been victimized by crime themselves – not to mention that like all the rest of us they’ve been getting ripped by corporations and lawmakers for decades. If we were really going to be just (we’re not), there’d be an endless round of restitution going on this country.
Now admittedly, an endless round of restitution would require a big fat bureaucracy (which Republicans would want to privatize), and America apparently loooooooves a big fat bureaucracy. If you don’t believe me, look at our healthcare system. We’ve got a privatized bureaucracy so large that no other nation on earth can hope to compete with it.
And for those keeping score at home, this gigantic, privatized health care bureaucracy that costs you eye-watering amounts of money is just another example of how Reagan and the privatizing GOP FUCKING LIED TO YOU. The private sector is neither more efficient nor less bureaucratic than the public sector. So do remember to flip the bird any time you see an image of Ronald Reagan or Milton Friedman.
The truth is, almost no one who is supposed to receive restitution ever receives what is ordered. They just don’t. For crime survivors it’s like getting a paycheck that says ‘1 MILLION DOLLARS – ha ha just kidding – $7.42’.
One of the sad things is – a lot of crime survivors want emotional restitution – and this they do not get from the current system. They want the criminal to feel the pain they’ve caused, to be sorry, and to never do anything like that again. But when you saddle someone getting out of prison with $45K of debt to pay off on a job that pays $14 and hour if they can get it and housing costs of $1400 a month if they can get it – you’re pretty much guaranteed that the criminal is going to turn to crime again to survive. And even if they don’t – the remorse factor is going to go way down in favor of the ‘this is simply impossible’ factor.
Restitution policy may not seem like it’s part of the poverty agenda that’s been snaking its way through every aspect of American life over the past 45 years. But it is. It’s part of making sure that as many people as possible never ever ever ever ever become anything but poor.
If the system really cared about the people who have been victims of crimes, it would be organized differently. It doesn’t really care about the victims of crimes because it was set up as a criminal justice system focused on perpetrators not victims. This is not unusual.
What Would Just Compensation to Crime Victims Look Like?
If you really want to compensate crime victims for their financial losses, you don’t try to squeeze blood from a stone. You don’t try to get that money from people who don’t have it. If you really want crime victims to be made financially whole, then you set up a funding system for that purpose. You tax billionaires or something. Or banks. Or lobbyists. You go to where the money is.
Furthermore, if you really cared about the victims of crimes, you’d pay a lot more attention to that emotional compensation I mentioned earlier. You’d institute as a matter of course things like restorative justice. You’d look at peacemaking programs and other less costly ways of helping crime victims recover. You’d put a lot of effort into restoring the fabric of the community and society rather than letting it fray further or be destroyed altogether.
Frankly, none of these things that emphasize emotional benefits to crime survivors (rather than harms to crime perpetrators) sound very American to me. American culture has always, so far as I can tell, put a higher priority on property than peace. And the main obstacle to setting up some sort of a fund to compensate victims of crimes is – victims of crimes are usually poor! If they get compensated for their losses, they might start being less poor. And, as already noted, the worst thing that could happen under the poverty agenda of the last 45 years – is poor people becoming less poor!
That said, if we could inch our way past to the poverty agenda just a tiny bit, there could be economic benefits to all a workable form of restitution that didn’t rely on trying to chisel resources out of people who don’t have any. Restitution itself could be a good thing. The current system isn’t.
Restitution Reform
Reform is absolutely possible. It may take the efforts of some impassioned law nerds to get it rolling, but it is definitely possible. Legitimate reform would need to ensure that restitution goes to those who need it. People who can afford to get compensation via insurance should still get compensation that way. And no the insurance company doesn’t need to get restitution. Insurance is a faster and (hopefully) easier way for folks with means to get compensation.
Restitution reform should focus on compensation to those without means.
I don’t doubt that some people would try to game a reformed restitution system. There are undoubtedly people gaming the current system. There is virtually no system people won’t try to game if they are inclined that way.
But you don’t have to create a system that is easy and attractive to game. Covering the medical expenses of those who are victims of crime, for example, could make an enormous difference if it prevents them from becoming saddled with enormous medical debt. It would, of course, need to be limited to legitimate medical expenses actually incurred.
Including counseling for victims of traumatic crime in a restitution system could also make an enormous difference. Victims of traumatic crime who don’t receive any counseling are often – well – traumatized. The economic consequences of trauma can be severe. Not to mention detrimental to the community at large.
And certainly those who commit serious financial crimes (e.g., $200K) should pay the restitution themselves up front where it is at all possible.
Concentrate on getting restitution out of people and companies who have committed the kinds of serious financial crimes that really warrant restitution.
The thing is, though, most crimes that get prosecuted, in this era of mass incarceration, aren’t that kind of serious financial crime.
Companies commit serious financial crimes far more often than you’d think, but the prosecution rate is low – unlike the prosecution rate for things like drug-related crimes. So instead of focusing restitution efforts on the crimes that are most commonly prosecuted and creating a useless bureaucracy to process efforts don’t that don’t benefit anybody – FOLLOW THE MONEY.
Make Sure Formerly Incarcerated People Can Get Jobs
Another area of reform is just as important but more tricky. A court can order a convicted person to get a job after release from prison, specifically so the convict can pay restitution. What the courts apparently can’t do, however, is order anyone to employ formerly incarcerated people. It does no good to order someone to get a job if the person can’t find anyone willing to employ them. Which means another important element of reform would be making sure formerly incarcerated people CAN GET JOBS.
Financial Disclosure Statements
Currently, if restitution has been ordered, the victim of the crime can theoretically look at the finances of the criminal to make sure that the criminal isn’t holding out on them, living large at their expense. They can do this because the person ordered to pay restitution has to submit a statement of their assets and finances that a victim can view upon request. The victim can also hire an attorney to try to collect any unpaid restitution. The cost of the attorney will be added to the restitution amount. This is wonderful, if the criminal has assets to pay the restitution but not enough assets to figure out how to hide them. So a good reform could be concentrating financial disclosure efforts on the PEOPLE WHO ACTUALLY HAVE MONEY and preventing them from trying to hide their assets.
More Flexibility
In California, at least, restitution is written into the state constitution. Prosecutors and the legislature can’t do anything to prevent a court from ordering full restitution in every single case in which a victim suffered any sort of loss.
But that lofty sentiment in a state constitution doesn’t mean a great deal in real life. I’ve had things stolen from me more than once. I’ve had other family members who’ve had things stolen from them more than once. Ain’t no restitution coming our way!
So another element of reform would be taking restitution out of state constitutions and giving everyone more flexibility to determine what the right form of justice is for the victim in a particular case.
Flip the Idea of Restitution
Another potential reform would be to flip restitution on its head. It’s not how much the victim lost – it’s how much the criminal gained. If the criminal gained above a certain amount from the crime, then it becomes an obligation of the criminal to cough up those unlawful gains and give them back to the people they were taken from.
Dealing with Mental Health Issues
Last and not least would be treating mental health disorders like mental health disorders and not crimes. It does no good to anyone to try to squeeze restitution out of an individual with serious mental health disorders. One of the single most pressing problems for law enforcement, courts, and prisons is the prevalence of people going through the system who are seriously mentally disordered.
There ought to be a separate system for handling offenders with serious mental disorders. These are specialized situations that require specialized expertise and handling. It is not the fault of police officers, court employees or prison officials that the United States has systematically decided to completely drop the ball when it comes to people with mental health disorders. You can blame that fiasco on Ronald Reagan (you can blame so much on him) and the civil liberties activists who fought to keep people with those disorders out of institutions.
Let me tell ya, going to jail or prison and dying there from lack of care, being shot by police officers, or victimized while homeless – that is no kind of civil liberty for a person with a serious mental health disorder. Deal with those issues America – and keep them out of the restitution and criminal justice systems that they’re clogging up!
Of course, America’s mental health issues are such a mess that it’s a pipe dream to think anybody would address them just to make the current restitution policies better.
And with that – we’ll leave you to get pretty fed up once again with the whole damn system we strive to survive. Namaste.
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