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  • Victim Restitution Laws












  • Victim Restitution Laws

    SIGNIFICANT RESTITUTION LEGISLATION

    Dissatisfaction with the justice system's management of restitution has risen dramatically over the last three decades. Alternatives to "business as usual" both within and without the criminal justice system have proliferated. Significant legislative reform efforts have contributed to a nationwide effort to strengthen victims' rights within the existing legal system.

    In 1982, the President's Task Force on Victims of Crime recommended the routine imposition of restitution in criminal cases with a documented financial loss to victims. Passage of the 1982 Victim and Witness Protection Act, the first general federal victim restitution statute, required judges to order full restitution in a criminal case or state on the record their reasons for not doing so. The Victims' Rights and Restitution Act of 1990 (Title V of the Crime Control Act of 1990) created, in effect, a Federal Crime Victims' Bill of Rights which, among other things, mandates that federal officials "make their best efforts" to see that victims of crime are accorded the right of restitution.

    In 1994, the Violence Against Women Act (part of the Violent Crime Control and Law Enforcement Act of 1994) identified particular crimes subject to mandatory restitution. Departing from the previous trend to permit the court to have discretion in ordering restitution, the 1994 Crime Act states very clearly that convictions for four types of crimes must include mandatory restitution as part of an offender's punishment:

      Sex crimes.

      Sexual exploitation and other abuses of children.

      Telemarketing fraud.

      Domestic violence.
    The Act also lists expenses for which victim restitution is required:

      Lost income.

      Necessary child care.

      Transportation.

      Other expenses related to participation in the investigation or prosecution of the offense.

      Attendance at proceedings related to the offense.
    Most recently, the Mandatory Victims Restitution Act (Title II of the Antiterrorism and Effective Death Penalty Act of 1996) requires federal judges to order full restitution from offenders who have been convicted or pled guilty to specific charges:

      Fraud.

      Property crimes.

      Consumer product tampering.

      Drug crimes.
    Crime Victims' Bills of Rights have been enacted in all states, approximately half of which provide for mandatory restitution unless compelling reasons to the contrary are stated on the record. More importantly, a total of thirty-one states have passed victims' rights constitutional amendments-at least ten of which provide for mandatory restitution. Since April 1996, the U.S. Congress has had before it several versions of a federal constitutional amendment for crime victims. The latest version, Senate Joint Resolution 3, was introduced by Senator Jon Kyl on January 19, 1999, and is currently pending before the 106th Congress. If enacted, the federal amendment would provide victims with a constitutional right to an order of full restitution from offenders.

    Enforcement of restitution. To ensure enforcement of restitution orders, the Crime Act and 1995 Attorney General Guidelines specify that U.S. Attorneys must enforce the restitution order "by all available means."

    The Crime Act provided several mechanisms to enforce restitution payments including the following:

      To reinforce the payment of restitution, the Crime Act requires that all benefits provided to the defendant by a federal agency must be immediately suspended until the defendant makes a "good faith" effort to pay restitution.
    The order may also be enforced by the victim in the same manner as a civil judgment.

    Compliance with a restitution order was established as a condition of probation or supervised release. The AG Guidelines specify that compliance with restitution orders shall be followed. If an offender fails to comply, the court, upon a hearing, may revoke the probation or term of supervised release, modify the terms and conditions of probation or release, or hold the offender in contempt.

    Finally, the Crime Act reinforced restitution payments by amending the federal Bankruptcy Code to prevent defendants who owe restitution from discharging their liability for payments by filing bankruptcy. The Act states that a debt for restitution included as a sentence, on the debtor's conviction of a crime, would not be discharged in a Chapter 13 bankruptcy filing. The Act also added a new provision in the Bankruptcy Code that addresses drunk driving debts, stating that such debts are not dischargeable under Chapter 7, 11, and 12 proceedings.

    Again, the 1995 AG Guidelines underscored restitution rights by stating:

      Federal prosecutors shall advocate fully the rights of victims, including child victims, on the issue of restitution.




    This information came from a
    US DOJ online article.

    *** Any law, statute, regulation or other precedent is subject to change at any time ***

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