Chapter 61
MONITORING AND ENFORCEMENT OF RESTITUTION ORDERS
In the context of restorative justice, the work of offenders and justice personnel focuses
on ameliorating the harm done to victims as a result of the offender’s criminal behavior. The
offender is accountable for restoring the victim and community, as much as possible, to their
preoffense condition. Restitution is a primary mechanism in accomplishing this goal. Through
predominantly financial restitution, offenders can replace or repair damaged or stolen property,
compensate victims for expenses such as medical treatment and psychological counseling, and
sometimes compensate for lost income, legal fees, and other costs directly related to the criminal
offense. In cases of crimes resulting in the death of victims, offenders may be held responsible
for funeral expenses, lost wages, and child support. Involving victims throughout the restitution
process and ensuring that their financial losses are reimbursed empowers them, satisfies the debt
they are owed, and allows them to strive for restoration from the experience of victimization.
Payment of restitution promotes the active participation of both offenders and victims in
the justice process. It shifts the focus of justice system interventions and makes them victimcentered rather than offender-centered. Restitution is a vital mechanism for helping offenders
understand the full impact of their criminal behavior on their victims. Through restitution
programs, offenders may have opportunities to learn new social and vocational skills and,
therefore, be better prepared for leading a prosocial lifestyle when they complete their period of
supervision by the justice system. Effective monitoring and enforcement are necessary, however,
to accomplish all these objectives.
In research reported by Davis and Smith (1993), several reasons for effective monitoring
and enforcement of restitution were delineated, including the following:
·
As a court-ordered sanction, enforcement of restitution is vital in establishing and
maintaining the court’s credibility with individual offenders and the public.
1
Author: Ann Crowe
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·
Collection of ordered restitution is important to maintain the credibility of the probation
department (or other collection/monitoring agency).
·
Promising restitution through court orders without collecting and disbursing the funds
leads to dissatisfaction of victims.
The study found that closer monitoring of offenders’ payments increased their compliance
with restitution orders. Further, regular updates to victims about the status of their restitution
accounts helps them feel better informed (Davis & Smith, 1993).
PROMISING PRACTICES FOR MONITORING AND ENFORCING RESTITUTION
ORDERS
The following practices were identified through the project survey and literature reviews
as crucial for effective monitoring and enforcement of restitution orders.
·
The restitution program designates a specific agency(ies) and assigns trained individuals
within the agency to monitor and enforce offenders’ payment of restitution. This is
clearly communicated to victims, offenders, and other stakeholders in the justice system
and the community.
·
The restitution program defines and clearly communicates to offenders that payment of
restitution is expected and will be treated as a priority by the monitoring agency.
·
The program holds offenders accountable for paying victim restitution (e.g., to a victim
compensation or restitution fund) even when their crime is considered “victimless,” the
identity of the victim of their crime is unclear, or the victim does not wish to receive
restitution.
·
The restitution program uses monitoring and enforcement practices that increase the
likelihood offenders will meet their restitution obligations, such as:
·
administrative and collaborative practices that keep supervisory staff informed of
collections;
·
providing training for staff on monitoring and enforcing collections;
·
case management procedures for monitoring payments and encouraging offenders
to pay their restitution obligations;
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·
·
providing programs that increase offenders’ ability to pay; and
·
administering incentives for payment and penalties for nonpayment.
The program has procedures for monitoring and enforcement, collection, and
disbursement of restitution payments across jurisdictional boundaries.
This chapter explores each of these practices using both survey data and program
examples.
AGENCIES AND STAFF RESPONSIBLE FOR MONITORING AND ENFORCING
RESTITUTION
Incarcerated Offenders
Often, incarcerated offenders are not held accountable for restitution payments while they
are in custody, and only after they return to the community on probation or parole supervision are
restitution orders enforced. However, Figure 6a shows the array of types of agencies responsible
for monitoring restitution payments from incarcerated juvenile and adult offenders in those cases
where restitution is collected while they are incarcerated. According to the survey responses,
agencies most likely to have responsibility for monitoring restitution payments by incarcerated
offenders were adult probation, juvenile probation, adult corrections, adult parole, and court
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clerks.
Besides the agencies shown in Figure 6a, survey respondents reported that pretrial
diversion and tax collection agencies also monitored incarcerated offenders’ restitution payments
in some locations.
Offenders in the Community
By far, the agencies most likely to monitor restitution payments by offenders in the
community are adult and juvenile probation departments, as shown in Figure 6b. Besides those,
adult and juvenile parole agencies, court clerks, prosecutors, victim/witness agencies, and courts
also sometimes have responsibility for monitoring restitution payments of offenders in the
community. Other agencies not shown in Figure 6b that respondents indicated were involved in
restitution monitoring included diversion programs, restitution centers, and a private probation
company. The following examples illustrate an array of agencies responsible for monitoring and
enforcing restitution payments by offenders.
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Collection Bureau, Adult Probation Department, Erie County, Pennsylvania
The Adult Probation Department in Erie County, Pennsylvania operates a special
division, the Collection Bureau, that oversees collection of financial obligations of all offenders.
Offenders pay their money directly to the Clerk of the Court, but Collection Bureau staff do the
enforcement work. They send follow up letters when payments are a month late. After two
months, Bureau Staff with collections backgrounds contact delinquent probationers and also
initiate wage attachment proceedings for those who are employed. If the amount owed is three
months in arrears, the offender must attend a preliminary hearing, an informal process to try to
resolve the problem. After four months of nonpayment, offenders are summoned for a Contempt
of Court hearing. One judge hears all contempt cases (for financial issues), and these generally
are scheduled on a monthly basis. Using these forms of leverage, the Bureau has been quite
successful in collecting restitution payments, and the Probation Department does not request
revocation of offenders for nonpayment of financial obligations. However, an offender who has
successfully completed all conditions of probation except a restitution order can be discharged
from probation, and the Collection Bureau continues to maintain the case until financial
obligations are met (P. Legler, personal communication, May 4, 1999).
Highland County, Ohio Court of Common Pleas
Highland County, Ohio Prosecuting Attorney
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In the Matter of:
Local Criminal Rule 10-A
. . . .[I]t is the finding of the Court that reasonable procedures for payment of restitution
by convicted offenders should be adopted. . . . Therefore, it is the order of this Court that Local
Criminal Rule 10-A be and is hereby adopted with regard to payment of restitution in all criminal
cases in this Court, whether ordered as part of a sentence imposed upon a defendant, or as a term
of probation, or as part of a plea agreement entered into between the parties and approved by the
Court.
The provisions of said rule are as follows:
(A) Restitution ordered by the Court will be paid by the offender in a lump sum to the
victim, unless the Court finds the offender is unable to do so solely due to his financial status.
(B) Periodic payments of restitution by offenders will be through the Highland County
Prosecuting Attorney’s Office, Victims’ Restitution Escrow Account, to be established by that
office.
....
(D) The offenders who utilize said payment program will pay a fee of $5.00 for each
payment to the Prosecuting Attorney’s Victims’ Restitution Escrow Account, which funds will
be used by the offender [sic] to pay for expenses of maintaining records of said restitution, the
Victims’ Restitution Escrow Account, postage, stationery, supplies and equipment needed to
maintain said account, and payment of personnel for the time spent on such duties
Said fee will be deducted from each payment made, and the balance applied to restitution.
....
(G) The Prosecuting Attorney’s Office is authorized to communicate directly with the
offender regarding all restitution matters, including payments, balances, receipts, failure to pay,
etc., unless the attorney for the offender notifies the Prosecuting Attorney’s Office, in writing,
that he is counsel for the offender. Thereafter, all contact is to be made through that attorney as
provided in the Code of Professional Responsibility. [italics added]
(H) Offenders making payments will be given receipts by the Prosecuting Attorney’s
Office, and current balances will be maintained.
....
Robert B. McMullen, Judge
The Court of Common Pleas in Highland County, Ohio entered a decision in 1994
placing responsibility for monitoring and enforcement of restitution payments with the
Prosecuting Attorney’s Office. Exhibit 6a contains excerpts from this ruling.South Carolina
Pretrial Intervention Program
Monitoring and enforcing restitution payments usually occurs through the prosecutor’s
offices and probation and parole departments, but sometimes other programs have these
responsibilities. South Carolina has legislated that pretrial intervention programs may be used to
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divert first-time nonviolent offenders from prosecution, and these agencies monitor restitution
payments of offenders in the program. Regarding restitution to victims, the legislation (SC§ 1722-140) stipulates that, “Prior to completion of the pretrial intervention program the offender
shall make restitution, as determined by the solicitor, to the victim, if any.” According to
materials prepared by the Ninth Judicial Circuit Pre-Trial Intervention program (David P.
Schwacke, Solicitor), the charges that were filed against program participants are held in
abeyance by the prosecutor as long as offenders are abiding by the program’s requirements.
Upon successful completion of program goals, the criminal charges are dismissed and the
person’s criminal record is expunged. Requirements for completion of the pretrial intervention
program include:
·
payment of $350 in nonrefundable program fees ($100 application fee and $250
participation fee);
·
submitting to and successfully passing random drug tests, if required;
·
if unemployed, finding a job or enrolling in school full time;
·
actively participating in the program developed by the counselor or case manager;
·
attending a prison tour when scheduled;
·
remaining in the program a minimum of 90 days to a maximum of one year;
·
repaying victims for losses incurred as a result of the participant’s criminal behavior
[italics added];
·
remaining free from further arrest while participating in the pretrial intervention program;
and
·
remaining within the State until charges have been dropped, unless specific permission to
travel has been granted by the pretrial intervention program.2
RESTITUTION IS A PRIORITY
Slightly more than two-thirds of the survey respondents indicated that restitution is a
stated top priority within their jurisdiction. Methods for achieving this priority ranking varied
2
Through the Interstate Compact for Adult Offender Supervision, if offenders under supervision cross State
lines, plans should be in place for their ongoing supervision.
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among the agencies responding and included statutory mandates, court orders, agency policies
and procedures, or some combination of these.
Statutory Priority
There are several examples of good legislation related to restitution summarized
elsewhere in this document. Several State or local laws specify that payment of restitution takes
precedence over other payments. Exhibits 5c and 5d in Chapter 5 are examples of statutes from
Florida and Wisconsin stipulating priority of restitution payments by offenders on community
supervision. State laws also may specify the priority of restitution payments for inmates in
custody, such as the example from Montana shown in Exhibit 5e, Chapter 5.
Court Orders
Courts typically order payment of restitution as well as other fines and fees offenders
owe. In the absence of statutory priorities, State or local courts may specify how these are to be
credited. Judicial orders that emphasize the payment of restitution can help agencies and
offenders understand the importance of this obligation. The Eighth Judicial District Court in Kay
County, Oklahoma has established a schedule for reimbursement that fixes the priority for
payments, with restitution being first. This order is shown in Exhibit 5b in Chapter 5.
Agency Policies and Procedures
The following examples illustrate ways these agencies have made restitution a priority.
Tarrant County, Texas Community Supervision and Corrections Department
The Tarrant County, Texas Community Supervision and Corrections Department (adult
probation), located in Ft. Worth, Texas has a strong restitution program that emphasizes
monitoring and enforcement of offenders’ restitution orders. Offenders’ financial obligations,
especially restitution payments, are a priority for the agency. The Assistant Director of the
agency, Jim Sinclair, reports that there are several ways the needs of victims and the importance
of restitution are reinforced, including:
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·
Victims’ needs are a stated priority for the agency, and restitution is the priority payment
offenders need to make.
·
The local courts are willing to order restitution, and the agency has an efficient system for
distributing payments to victims.
·
Victim Advocates are employed within the agency.
·
All employees receive mandatory training on victims’ issues.
·
Probation officers receive training on fee collection procedures.
·
A program component actively attempts to locate “lost” victims.
·
There is interagency coordination of efforts around victims’ issues.
·
Agency and staff participate in victim-related events and organizations at the local, State,
and national levels.
·
Victims are included in agency operations, such as staff meetings.
(J. Sinclair, personal communication, September 14, 1999)
The following excerpts from the Tarrant County, Texas Community Supervision and
Corrections Department Policy and Procedure Manual illustrate how the agency has
institutionalized some of these strategies.
Policy:
A.
Probation Conditions that require payment of fees are of equal importance
to any other conditions that [the] Court may order. The probation officer
is responsible for monitoring the probationer’s payments and using the
casework process and supervision plan to motivate and impel the
probationer to take the steps necessary to make payments as ordered by the
Court.
B.
. . . . [T]o maximize collection of fees, all probation officers must accept
their responsibilities, be determined to enforce probation conditions and be
willing to invest the effort in their casework. Each probationer, regardless
of how many different probation officers may contact him, should
experience their universal diligence in collection of fees. The probation
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officer, who shuns or is casual about the responsibility to collect fees,
thwarts the efforts of the Department and those who take the responsibility
seriously.
C.
Each probationer is required to report and make the entire monthly
payment assessed by the Court.
1.
The probation officer must not indicate or imply that the
probationer is excused from making payments.
2.
The probation officer must emphasize the probationer’s
responsibility to report on time each month even if he fails to make
the required payment at the time he reports.
3.
The probation officer must enforce these conditions of probation
beginning with the very first month.
D.
Collection of court-ordered restitution for crime victims should be viewed
as the leading payment priority [Italics added].
These efforts are making a difference for victims of crime whose offenders are supervised
by the probation department. The following example, written in the victim’s own words, shows
the effect of the agency’s strong commitment to victims and priority for restitution payments.
I became a restitution recipient in 1989 due to the offender in my case being
sentenced to Adult Probation for the murder of my son, Keith Salter. The
offender was court ordered to pay me restitution of $13,807.00 at a rate of
$120.00 monthly. The restitution was for medical bills and funeral costs.
I am a member of Parents of Murdered Children. It is a support group for parents
who have lost their children due to violent crime. At one of our support group
meetings in 1993, we had a guest speaker from the Adult Probation Department,
and when he finished his presentation, he allowed us to ask him questions. I
asked why was the offender in my case allowed to irregularly pay restitution. The
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probation officer told me that if I gave him the offender’s name, he would find out
why the restitution payments were not being made regularly. I gave him all the
needed information on the offender, and within the next month, I began receiving
restitution payments on a regular basis. I am proud to say that the Tarrant County
Adult Probation Department allowed me to voice my complaint and it did not fall
on deaf ears. As of August 9, 1999, the offender paid the last restitution payment
he owed me.
Even though the restitution payments were ordered to pay bills resulting from the
murder, I recognize the fact that each time the offender purchased a money order
payable to the Adult Probation Department for restitution, it should have been a
reminder that he was paying for damages due to the murder he committed.
Barbara Salter, Texas
Texas Department of Criminal Justice, Adult Parole
The Adult Parole agency for the State of Texas also considers restitution payment a
priority. The agency has established policy regarding fees and restitution collection from
offenders as required conditions of their release. Exhibit 6b from this policy illustrates the strong
emphasis on restitution.
Texas Department of Criminal Justice
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Adult Parole Policy
Collection Process
A.
The parole officer shall assist the offender in determining the minimum amount of
fees that he shall pay each month; the highest priority for fee collection shall be victim restitution
[italics added]. In cases for which a restitution special condition is imposed, the officer shall
suggest to the offender that the full possible payment each month be credited to restitution and
that payments for remaining applicable fees be deferred until payment of the amount of
restitution is satisfied. The deferred fee balance will continue to accumulate. If the offender
agrees, the full monthly payment shall be credited to restitution until satisfaction of the restitution
balance. If the offender does not agree to defer the $10 supervision fee and the $8 crime victims
compensation fee in favor of restitution, the officer shall assist the offender with determining
how much should be paid each month and instruct the offender with the priorities established for
payment:
1.
Restitution [italics added];
2.
Court Costs and Fines;
3.
Crime Victims Fund;
4.
Sexual Assault Program;
5.
Public Notification Reimbursement;
6.
Secondary Education Reimbursement; and
7.
Supervision Fees.
HOLDING OFFENDERS ACCOUNTABLE
Sometimes victims of crimes cannot be identified or they do not wish to receive
restitution or otherwise participate in the justice process. Some crimes, such as drug sales, do
not victimize individuals but do victimize the community in which they occur. However,
offenders should be accountable for paying restitution, even in these situations. Two factors
make this practice important. First, not all victims will receive restitution from their offenders
for a variety of reasons. Therefore, it is important -- and only fair -- to establish a mechanism so
they can be compensated for their losses as are victims whose offenders pay restitution. Second,
in the concept of restorative justice, the needs of the community as well as individual victims are
addressed. Having offenders contribute to a victims’ fund helps the entire community to assist
victims more effectively.
In California, the State Board of Control collects and administers money related to
government claims, including a fund to compensate eligible victims of crime. The Victims of
Crime Program receives funding from a Federal Victims of Crime Act grant, penalty
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assessments, and restitution fines. A restitution fine is imposed on all offenders (both adults and
juveniles) at the time of sentencing. This money goes to the Victims of Crime Program that pays
benefits to victims who are not receiving restitution. If a victim receives compensation, and at a
later time, an offender is ordered to pay restitution, the restitution collected is returned to the
victims of Crime Program to repay the amount given to the victim. This provides a pool of funds
that can be used for future victims. Under this program, restitution revenue increased from $5
million in FY 1993-94 to $45 million in FY 1996-97. With fund surpluses, the State Board of
Control has been able to fund staff positions in several district attorney and probation offices
across the state. These new staff track offenders whose victims have received benefits from the
Victims of Crime Program. They follow the offenders throughout the justice process to ensure
restitution fines and orders are administered appropriately. Further, computer terminals have
been placed in most probation offices around the state to which probation staff have access and
from which they can find out if a victim of a probationer has received benefits from the Victims
of Crime Program. (C. Soderlund, personal communication, February 5, 1998).
Tennessee, among other States, has a similar fund called the Criminal Injuries
Compensation Fund. All offenders are required to pay into the fund whether or not they
committed a crime that caused a loss to a specific victim.
INCREASE LIKELIHOOD OF PAYMENT
Administrative and Collaborative Practices
Survey respondents often reported that various components of the restitution program
were handled by different agencies or different individuals within the same agency. For example,
in some communities, the court clerk collects restitution payments, but probation officers are
responsible for monitoring and enforcing restitution orders. In some larger jurisdictions,
collection and monitoring might be conducted within the same agency (such as probation), but in
some instances, specialized staff process payments while other staff supervise offenders. In all
cases, but especially where diverse individuals and agencies are responsible for different aspects
of the restitution program, providing current information to all components and staff throughout
the justice system is crucial. Various methods for conveying this information were reported in
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the survey. Several respondents stated that mechanisms were in place to allow those supervising
the offender to receive timely information about payments even when these were collected by an
entirely different entity. This may be done through electronic or manual processes. If the
jurisdiction has a linked computer system, it should be possible for a probation officer to access
information about payments an offender makes to the court clerk or prosecutor’s office. If such a
system is not available, regular reports (at least monthly, and preferably more often) should be
sent to personnel who monitor the offender by staff who collect the payments.
Achieving a collaborative system that operates smoothly requires diligent effort and
cooperation among all systems involved, including courts, prosecutors, victims assistance
personnel, court clerks, probation and parole agencies, incarceration/juvenile custody facilities,
and other organizations. Administrative and collaborative practices that keep staff who supervise
offenders apprised of their payment status are among the critical elements to be determined
through inter- or intra-agency agreements. More information on collaborative approaches and
innovative practices are contained in Chapter 10.
Staff Training on Monitoring and Collections
In the survey conducted by APPA and VALOR, respondents were asked the following
question:
Although training is not a component of the present project, what kinds of specific
training would you find helpful if offered in your jurisdiction?
There were many and varied responses to this question, but several of them focused on issues of
monitoring and enforcement of restitution payments. Examples included:
·
Training in collection techniques;
·
Models of programs that have been successful with collecting payments and interagency
communication;
·
Follow-up to failures to pay;
·
Effective mediums to increase the collection of restitution;
·
Behavior modification for offenders; and
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·
Assessing ability to pay/financial investigation of offenders.
Regardless of the agency and/or staff selected to monitor and enforce restitution payments
by offenders, those staff members should receive training about how to do this aspect of their
jobs effectively. Some programs, such as the Westchester County, New York and Alexandria,
Virginia probation agencies also hold staff accountable through their personnel performance
evaluations on how well they manage restitution cases.
The Tarrant County, Texas Community Supervision and Corrections Department (adult
probation) has developed a training component for probation officers on fee collection, including
restitution. The curriculum provides three and one-half hours of training as part of the new
officer orientation program. Exhibit 6c contains an outline of that training curriculum.
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Tarrant County, Training
Texas Community
Curriculum
Supervision
on Fee Collections
and Corrections Department
Curriculum Content Areas
Importance of Collecting Fees
·
Impact of Fee Collections
·
Review of Agency Policies and Procedures
·
Types of payments
·
Amounts
·
Documentation
·
What to do if offenders do not pay
·
Fee Waivers and Reductions
·
Steps in Fee Collections
·
·
·
·
Casework Methods for Fee Collections
Control the case
Confrontation
Consequences
·
Applications to role play situations
Key Issues Addressed in the Curriculum
The supervision officer monitors the probationer’s payments and uses the casework process and
supervision plan to motivate the probationer to make payments as ordered by the Court.
Collection of court-ordered restitution for crime victims is viewed as the leading payment
priority.
Take on the message you want the probationer to walk away with. And that message should be,
this officer is serious about my probation and will not let me slide on my fees.
You as the supervising officer must enforce the conditions of probation, thereby setting the limits
on the probationer and providing the control necessary to protect the community and effect the
rehabilitation of the offender.
[The trainer summarizes by using the FEE acronym]:
Focus on fees at each meeting with the probationer.
Educate them in your referrals and alternative actions.
Empower you[rself] to do your job and not feel guilty in collecting those fees. . .
Case Management Procedures
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Staff involved in monitoring and enforcing restitution payments by offenders will have several
important tasks to complete in the case management process. In some cases, these all will be
performed by the same individual -- often a probation or parole officer -- while in other instances
the tasks may be distributed among two or more people and may include multiple agencies. This
section presents the case management procedures of investigation and ongoing supervision.
Investigation
Case managers often have responsibility for investigation, which may include:
·
Gathering information from victims regarding the impact of the crime and their specific
monetary losses;
·
Investigating the offender’s financial resources and ability to pay restitution;
·
At times, mediating victim and offender issues; and
·
Making recommendations to the court for sentencing or to the paroling authority for
conditions of release.
Gather Victim Information. Ideally, information is gathered from victims about their losses
and the impact of the crime from their first contact with the criminal or juvenile justice system.
Police, prosecutors, victim/witness personnel, judges, and corrections officers all may have
responsibilities for gathering victim information. A well-run restitution program should specify
the responsibilities for collecting information from victims for each of the agencies and their
personnel within the system. As much as possible, information should be gathered before cases
are diverted or before sentencing so diversion agreements or judges’ orders can reflect the type
and amount of restitution to be paid. This information usually is collected before trial by the
police, prosecutor, and victim/witness personnel or following trial or adjudication of delinquency
in the presentence investigation. Collection of this information and sample forms used by
agencies were incorporated in Chapter 4, Determination of Eligibility and Amount of Restitution.
Gathering victim information is not necessarily completed after these initial steps are
taken. In some cases, total losses are not known before sentencing, and case managers may need
to contact victims to obtain further information about their restitution claims. Depending on
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State laws and agency policies, amounts and payment schedules may be changed by corrections
officers, or cases may need to be returned to court for modification of restitution orders. Absent
or conflicting information may necessitate a restitution hearing with the judge deciding the
amount to be ordered. Corrections or other personnel monitoring restitution payments also
should update victim records periodically to ensure timely distribution of payments.
The Michigan Department of Corrections implemented the policy shown in Exhibit 6d
Michigan Department of Corrections Policy
Collecting Information from Victims
The field agent conducting the PSI [Pre-Sentence Investigation] shall make reasonable efforts to
contact the victim(s) and verify claims for restitution prior to sentencing. The recommended
disposition in the PSI Report shall include information regarding total restitution claimed and
whether the claim could be verified. In instances where the amount of restitution cannot be
determined prior to sentencing, the agent shall forward it to the Sentencing Court, with an
indication whether the claim could be verified.
regarding collection of information from victims about their losses.
Make Recommendations to the Court for Sentencing. Another step of the case management
process is making recommendations to the court regarding restitution. The prosecutor and/or
victim/witness personnel often have responsibility for working with victims, determining the
amount of losses the victim incurred because of the crime, and recommending to the court the
amount of restitution and payment schedule. This also may be done by way of the presentence
investigation report, usually completed by probation officers. This process was discussed more
fully in Chapter 4.
During the case management process offenders’ payments and financial situations should
be reviewed periodically. If changes have occurred it may be possible to increase the rate of
restitution payments, or it may be necessary to lower payments if the offender has lost a job or
incurred a disability. The program should have provisions for reporting this information to the
court so the restitution order can be modified appropriately.
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Investigate Offenders’ Financial Resources. Case managers will have responsibility for
investigating offenders’ financial resources and ability to pay restitution. This may occur initially
and throughout the supervision period. Some offenders will be reluctant to pay restitution
obligations, and case managers will need to employ skills in locating asset information. Several
types of financial information may be gathered. Table 6a summarizes these types of information
and sources that may be investigated. Besides those listed, bankruptcies and property
repossessions also should be investigated to form a complete picture of each offender’s financial
situation. Further, personal visits to the offender’s residence will provide a view of the person’s
lifestyle and possessions.
Table 6a
OFFENDER’S FINANCIAL RESOURCES AND OBLIGATIONS
Type of Financial
Information
Offender Sources of
Information
Other Sources of
Information
Assets (e.g., real and personal
property owned, bank
accounts, investments,
pension plan)
Bank statements, tax
returns, employer pension
plan information, investment
account statements, insurance
policies
Family members, Department
of Motor Vehicles (to verify
vehicle ownership), Property
Tax Office
Income (e.g., salaries and
wages, tips, interest or
dividends, collection of
loans, income from property
rentals, food stamps, public
assistance)
Tax returns, pay stubs, Food
Stamp and Public Assistance
vouchers
Employer verification,
property records, Public
Assistance and Food Stamp
verification, Department of
Labor to verify addresses and
earnings
Liabilities (e.g., debts/loans,
such as mortgage, automobile
loans, payments for furniture,
credit card balances)
Loan/mortgage agreements,
credit card statements
Verification from banks,
credit card companies,
mortgage companies or other
financial institutions
Recurring Expenditures
(food, housing, utilities, child
support, alimony, insurance
payments, vehicle expenses)
Rent receipts, utility receipts,
proof of dependents, canceled
checks
Court orders for payment of
child support, alimony, or
restitution; information from
family members
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Case managers should employ processes to update the offender’s financial situation on a
regular basis by looking for areas that might have changed. For example, checking for records of
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inheritances or financial settlements, lottery winnings, or tax returns may provide information
about resources not previously available to the offender that now can be used for paying
restitution and other financial obligations. In Tarrant County, Texas, the Community
Supervision and Corrections Department (adult probation) uses the Budget Worksheet shown in
Exhibit 6e when probationers fall behind in making payments. This helps both the offender and
the probation officer assess the offender’s financial situation.
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The Colorado Judicial Branch has instituted a Collections Investigator (CI) Program, and
the programs’ personnel are located directly in courts and probation departments. They have
been successful in increasing restitution collections immediately upon sentencing as illustrated in
the following program material.
Colorado Judicial Branch
Collections Investigator Program
The CI’s are not after-the-fact collections agents. Judges routinely direct
defendants requesting stays of execution (delays of payment) on their fines and
costs to report to the CI immediately upon sentencing. The CI’s interview
defendants requesting payment schedules before the defendants leave the
courthouse, and first attempt to collect the full balance. If the defendant is unable
to pay in full immediately, the CI determines a payment schedule based on the
defendant’s financial ability. Prior to the use of CI’s, virtually every request for a
delay of payment was granted because the courts did not have staff available to
adequately evaluate each defendant’s ability to pay. With a CI, about one-fourth
of the defendants wishing to delay payments in the county courts are “screened
out” and required to pay in full immediately (or within forty-eight hours). This
prevented nearly 16,000 unnecessary deferred payment plans in Fiscal Year 1995
alone.
(Colorado Judicial Branch, 1997)
The Colorado Judicial Department has instituted some innovative ways of checking for
offenders’ assets. In one jurisdiction, probation officers make routine appointments with
probationers owing restitution, and then shortly before time for the appointment advise the
offender they will make a home visit instead. During this visit, they conduct a Field Restitution
Assessment by walking through the offender’s residence and making a video of his or her
belongings. This provides a baseline of what the offender owns and documents his or her assets
and standard of living. If, at a later time, the probation officer observes that new items are being
acquired, yet the offender is not paying restitution, further investigation is undertaken. The video
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tape can be used as documentation in court that the offender has assets that could be sold to pay
restitution or that the offender has purchased new items even though he or she is not paying
restitution.
The Colorado Judicial Department also contracts with private collection agencies to do
asset investigations. These agencies search for an offender’s assets by researching public records
for real estate, personal property, and bank accounts, and reviewing credit reports. If they
discover hidden assets, the Judicial Department pays the collection agency, and then recoups the
expense from the offender (P. Litschewski, personal communication, October 12, 1999).
Mediate Victim and Offender Issues. At times, victims and offenders differ in their account of
the harm caused by the crime. Some agencies have developed mediation programs to address
these issues when they occur. Consistent with a restorative justice framework, this approach
gives the victim a more active role in the justice process and decision making.
The Madison County, Indiana Community Justice Center has a Mediation Coordinator.
The Court or Probation Department can refer a case for which mediation is needed. During the
mediation process, the victim and offender jointly agree on the amount of restitution and a
payment schedule. When the case involves a juvenile offender, the parent or guardian must agree
to provide transportation and other support needed for the youth to satisfy his or her restitution
obligation and sign the agreement with the defendant, victim, and mediator. Besides financial
restitution, the victim and offender may agree on work or community service the defendant will
do to satisfy his or her debt (D. Swift, personal communication, September 8, 1999).
The Community Juvenile Arbitration Program serves Edgefield, Lexington, McCormick,
and Saluda Counties (Eleventh Judicial Circuit) in South Carolina. It operates under the auspices
of the Solicitor’s Office (Prosecutor). To be eligible for this diversion program, the juvenile
must be a nonviolent, first-time offender. The program is described as “a process combining
arbitration and mediation in which all parties involved in an alleged offense join together in an
attempt to resolve their problem without involving the court system. It is the job of the volunteer
arbitrator to determine the accused juvenile’s guilt or innocence, then to serve as mediator for the
hearing participants in determining what the juvenile must do to make up for his/her wrong
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doing, if determined guilty.” Participation in the process is voluntary for the juvenile, but those
who participate must waive some of the rights they would have in a court, such as the right to
legal representation. Participants in each hearing include the accused juvenile, his or her parents,
the arresting officer, the victim, and a volunteer arbitrator.
The volunteer arbitrator follows the case and ensures that the youth completes all required
sanctions within 90 days. Arbitrators must complete 21 hours of training to be certified. (The
training agenda for the volunteer arbitrators in shown in Figure 4k, Chapter 4.) About 93 percent
of youth who enter the program complete it successfully. The program is cost-effective because
of its large volunteer base; the director of the program and a part-time secretary are the only paid
staff members. Victims have the opportunity to participate in the process and have a voice in the
outcome. During FY 96-97, $5,793.88 restitution was paid to victims; $54,476.82 has been paid
to victims since the program began in 1983. Youth in the program also performed 3,271 hours of
community service work during FY 96-97. Between its inception in 1983 and 1997, only 7.66
percent of the youth in the program were referred to the Family Court for a second offense within
one year of their participation in the arbitration program (Program materials, 11th Judicial Circuit,
SC, Solicitor’s Office; K. Barton, personal communication, September 8, 1999).
Ongoing Supervision
Instructions to the Offender. The case manager has responsibility for explaining to the
offender his or her obligation to pay restitution and the correct procedure for making payments.
Offenders must understand this information and the consequences for noncompliance. Both
verbal and written instructions should be given, and the language used should be clear and easily
understood by offenders. Among the information and issues that should be addressed in the
instructions to the offender are the following:
·
the amount of restitution owed;
·
additional charges (e.g., restitution fines, collection fees)
·
the manner in which restitution is to be paid (e.g., lump sum, monthly payments);
·
to whom the restitution payments are to be made (e.g., Court Clerk’s Office, Probation
Department – usually not directly to the victim);
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·
when payments are due (e.g., at sentencing; within 30 days of sentencing; by a certain
date each month);
·
information that must accompany the payment (e.g., an account number, the offender’s
name and address);
·
forms of payments that will and will not be accepted (e.g., money orders, cash, credit
cards; personal checks);
·
how payments may be made (e.g., in person -- days and hours of operation; by mail,
including specific addresses);
·
how the money will be forwarded to the victim;
·
under what conditions the payment amount might be changed (e.g., victim’s submission
of additional expenses)
·
consequences for failure to pay;
·
what to do if problems arise that prevent payment; and
·
how the offender can appeal restitution decisions.
Some agencies complete payment instruction forms in duplicate and have both the
offender and the case manager sign it. One copy is given to the offender and the other is kept in
his or her file. Agencies may want to consider providing a copy to the victim as well. Some
agencies also provide the offender with pre-addressed envelopes and coupons to use when
paying.
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124
125
In the case of incarcerated offenders or those working in restitution centers and other
community based programs, additional instructions may include how earned pay will be
processed and the percentage of earnings that will be applied to restitution and other financial
obligations. Exhibit 6f from the Henrico County, Virginia Community Corrections Department
provides an example of explicit instructions to offenders for paying restitution. Following it is
another example of a mechanism (brochure shown in Exhibit 6g) for providing instructions to
offenders.
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Offenders owing restitution may be supervised in custodial or community settings (i.e.,
probation, parole, or community-based residential alternatives). Some of the supervision tasks
will be unique to each setting, while many of the tasks of the case manager will be constant
regardless of where the offender lives. Many of the general supervision tasks are included in the
Tarrant County, Texas Policy and Procedures Manual in the section on probationer payments.
Portions of the agency’s policy statement were excerpted earlier in the chapter in the discussion
127
of restitution as a priority. Additional sections are adapted below showing the casework
procedures required to carry out this policy.
Tarrant County, Texas Community Supervision and Corrections Department
Policy and Procedures Manual
RESTITUTION SUPERVISION TASKS
Procedures
Documentation
The probation officer will document each payment accurately:
1.
In the probationer’s case file chronology, and
2.
On the probationer’s monthly report form when the probationer submits
payment with the report.
If the probationer does not submit full payment with the monthly report, the
probation officer will document in the chronology:
1.
The full payment was not made,
2.
The reasons the probationer gave for not making full payment,
3.
The date by which the probationer indicated he will make or complete the
payment for the month. (The probation officer will follow-up and
document whether or not payment was made as promised).
Counseling
When the probationer falls behind in making payments, the probation officer will
discuss the matter with the probationer:
·
Allow the probationer to express himself regarding his attitude toward making
payments and his perception of his ability to make payments.
·
Note for further investigation and action any obstacles that may limit the
probationer’s ability to pay.
·
Answer questions, clarify uncertainties, and correct misconceptions the
probationer may have regarding the payment of fees.
·
Counsel the probationer regarding his responsibility to make payments ordered by
the Court. This counseling should be motivational and should convey the
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Department’s expectation that the probationer will pay court ordered fees on time
each month.
·
If appropriate confront the probationer for the purpose of dispensing with any
fabrications, game playing, testing of the probation officer, or other nonsense that
might obstruct a genuine meeting of the minds as to what the probationer must do.
Casework
As part of the casework process, the probation officer will:
·
Investigate as necessary and address in the supervision plan what the
probationer must do to overcome any obstacles and pay fees (this may
include completing a budget worksheet), and communicate the supervision
plan to the probationer.
·
If the probationer falls behind an amount equal to three monthly payments
and reports an income source, refer the probationer to the Personal
Budgeting Course. During the Personal Budgeting Course, the probationer
will establish a schedule for payment of past due fees, and the probation
officer will update the case supervision plan to reflect the payment
schedule determined through the budget course.
·
If the probationer claims payments were not or cannot be made because of
a medical condition, whether temporary or permanent, the probation
officer will instruct the probationer to furnish a physician’s statement to
substantiate the medical condition and investigate the probationer’s
income and expenses. A medical condition does not necessarily relieve
the responsibility to pay court ordered fees.
·
If a probationer is able to work, but is unemployed, the probation officer
will take appropriate measures regarding employment (Adapted from
Tarrant County, Texas Community Supervision and Corrections
Department Policy and Procedures Manual).
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Some restitution programs have developed mechanisms for assisting offenders to meet
their obligations to pay restitution. One of these is automated notices (invoices) of payments
due. Many of the automated programs can routinely generate such reminder messages without
much staff time required. Thirteen percent of the respondents to the survey indicated that they
sent monthly invoices to offenders. These may be sent on a routine basis, or they may be sent
only when accounts are in arrears.
An example of a statement sent to offenders by the Utah Department of Corrections is
included in Chapter 7. The Dakota County, Minnesota Community Corrections agency, which is
described later in this chapter, recently conducted a project to test the efficacy of various
enhanced collection efforts on the rate and timeliness of restitution collection. They divided
juvenile offenders owing restitution into three groups:
·
those who received monthly letters stating the balance of restitution they owed,
·
those who received an initial letter informing them of the amount of restitution owed and
then received monthly calls from a volunteer who spoke with both offenders and parents,
and
·
those who received only an initial letter informing them of the amount of restitution owed
and had no further contacts.
After six months, the project found the following outcomes illustrating the effects of
regular contact with offenders regarding their restitution payments:
·
59% of youth in the first group who received monthly letters had paid restitution in full or
in part during the period,
·
70% of youth who received monthly phone calls had paid restitution in full or in part
during the period, and
·
42% of youth who received no follow-up after the initial letter had paid restitution in full
or in part during the period.
Another important casework task is that of gathering and updating information on both
victims and offenders. Victims’ contact information must remain current so they can receive
restitution amounts they are due. The case manager often is in the best position to obtain this
information and forward it to the person or agency responsible for payments. Similarly,
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information on offenders must be updated regularly. There should be plans in place to regularly
verify offenders’ addresses, financial information, and other related data.
Finally, several programs responding to the survey reported that case managers
supervising offenders were required to review the status of restitution payments periodically.
This was stipulated to occur within a prescribed timeframe by several programs, varying from
one to six months prior to case closure. Some program policies specified that payment schedules
should be developed so that restitution was paid in full several months before the end of the
offender’s probation or parole period. The case manager reviews the account then and notifies
the court or paroling authority if payments are in arrears and the offender is not going to be able
to complete expected payments by the end of his or her scheduled supervision period. In such
cases, the court or paroling authority can take appropriate actions, such as extending or revoking
probation, or making some other stipulations.
Programs That Increase Offenders’ Ability to Pay
Offender indigence is often cited as an obstacle to effective restitution programs. Many
offenders, especially juveniles, do not have adequate incomes to repay the losses they caused
victims. Restitution is one of several financial obligations that offenders may have. Beyond
restitution, they may have obligations to pay fees, fines, and court costs within the criminal or
juvenile justice system. Adult offenders may have families to support as well as their own
livelihood.
Restitution programs, however, can assist offenders in paying their restitution in several
ways, including:
·
Employment opportunities,
·
Budgeting assistance,
·
Community service, and
·
Performing services for victims.
The following program illustration depicts examples of several of these strategies for
assisting offenders to pay their restitution obligations.
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Victim Restoration Program
Dakota County, Minnesota Community Corrections
Beginning in 1980, the Dakota County, Minnesota Community Corrections started
a juvenile restitution program that has grown and been enhanced, and now is also
applied to adult offenders. The program has three expectations for offenders:
·
To make things right with the person harmed,
·
To contribute to the community, and
·
To improve themselves.
To meet those objectives, offenders are involved in conferencing with the victim
to achieve an agreement on what must be done to repair the harm caused by the
crime. Offenders also must perform community service. Further, they must
complete an assignment designed to improve themselves. For example, a youth
who commits arson might have to interview the Fire Marshall and write a report
about the effects of arson.
The guidelines for the Victim Restoration Program provide an overview of its
purpose as follows:
The Victim Restoration Program is committed to meeting some of
the needs and concerns of victims and providing them an
opportunity to have a broader voice in the Dakota County justice
system. The responsibility of the Victim Restoration Program staff
is to investigate and verify monetary losses incurred by victims and
to recommend to the court and/or probation staff an accurate
amount of restitution that should be paid by the offender. The
Victim Restoration Program is also responsible for informing the
victim and possibly the offender of the amount of restitution that
has been determined to be accurate and explaining, when
necessary, how that amount was determined.
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To help youth complete their obligations to perform community service and earn
money for restitution, the agency developed Youth Re-Pay Crews for those who
were not employed and could not pay restitution. Through the agency’s contracts
for various jobs, youth perform work tasks and the agency receives the money for
a restitution fund. As youth work, their hours are credited, and their victims are
paid from this fund.
This program now is available to youth and adults both in detention or jail and on
release status in the community. For youth and adults in detention or jail, special
work crews are available, and they are supervised while completing projects
outside the facility. If offenders have not achieved an appropriate level that
allows them to leave the institution to work, they are engaged in work within the
facility. The money they earn goes toward victim restitution first.
(Community Corrections Program Materials; S. Haider, personal communication, October 11,
1999)
Work Programs for Incarcerated Offenders
About one-third of the respondents to the survey indicated they were aware of work
programs within incarceration facilities for adult offenders that help inmates earn money for
restitution payments. However, slightly less than ten percent of respondents were aware of such
programs in juvenile custody facilities. Figure 6c depicts the percentages of work programs for
incarcerated offenders for both adults and juveniles known by survey respondents.
Respondents were asked to describe work programs for incarcerated offenders. Their responses
included the following types of work programs:
·
Work release, work release centers, work camp (29 responses),
·
Institution work, correctional industries, jail work crews (16 responses),
·
Community service (5 responses),
·
Restitution Centers (3 responses),
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·
Prerelease work program (1 response), and
·
Job search help (1 response).
Additionally, some respondents indicated how restitution was collected from incarcerated
offenders. These included the following:
·
A percentage of earnings collected is paid to restitution.
·
Employed inmates make monthly payments to restitution.
·
Wages earned in certain work programs are required to be saved for restitution payments.
·
Prisoners who work while incarcerated can have wages garnisheed for outstanding
restitution fees.
Similarly, for juveniles sentenced to juvenile detention or custody facilities, respondents
were asked to describe any work programs utilized. The following types of programs were
reported:
·
Juvenile work crews (5 responses),
·
Community service (4 responses),
·
Weekend work project (2 responses), and
·
Other work programs (5 responses).
Common perceptions are that it is difficult to collect restitution from incarcerated
offenders because they have no opportunity to work. However, several programs have found
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innovative work opportunities. At the Pine Hills Youth Correctional Facility in Montana, youth
may work for the local hockey association helping to set up facilities before games. They also
help local ranchers with branding, cutting trees, and other tasks. Presently, the youth are
involved in building a new restitution building on campus which will provide a place for them to
do various jobs to earn money for restitution during the cold winter months when they cannot
work outside (M. Phillips, personal communication).
The California Youth Authority has developed the Free Venture Program which contracts
between private industries and corrections for jobs and training for youth. Youth must agree that
15 percent of their earnings will go to restitution. The Authority also has institutional jobs youth
can perform to earn minimal pay. This goes directly to the youth’s trust account, 50% of which
can then be used to pay restitution obligations (T. Hall, personal communication, May 4, 1999).
Work Programs for Offenders in the Community
Another question on the survey asked respondents to indicate which of several strategies listed
were used for gathering restitution information and/or collecting restitution. The approaches that
increase the likelihood offenders will pay by providing programs that improve their opportunity
to pay are shown in Figure 6d.
Community Service . A common issue among criminal and juvenile justice agencies involved
in the restitution process is the offender’s inability to pay restitution. This is often the case
among juvenile offenders, and many adult offenders are without adequate employment as well.
Occasionally, victims do not wish to have the offender pay restitution to them, or victims do not
provide information to allow the courts to impose restitution requirements. One option in these
situations is to allow offenders to perform community service in lieu of monetary restitution.
Most programs indicating this option mention that it is only one of several alternatives in the
restitution process, and it is used infrequently when other choices are not available.
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Community service is an option used more frequently for juveniles than for adults.
Slightly more than one-fourth of the agencies responding to the survey indicated that they may
allow offenders to perform community service in lieu of monetary restitution. Of those agencies
indicating this as a means of collecting restitution, 14 percent served only juveniles, 28 percent
served only adult offenders, and 52 percent worked with both adult and juvenile clients (data on
program population were not provided for 7 percent of the programs). Of all agencies
represented in the survey, only 6 percent served solely juvenile clients; thus, agencies using
community service as an option for youthful offenders were overrepresented in comparison to all
respondents, and those offering community service as an option for adult offenders (28%)
represented fewer that the proportion of agencies serving only adults among all survey
respondents (37%).
Some innovative programs, such as the one in Pima County, Arizona, have developed
community service options that actually provide restitution payments to victims. The juvenile
Restitution Accountability Program, operated by the Pima County Juvenile Court (Probation
Department) uses community service as a means of compensating victims. In this case, the
community benefits from the work juveniles do, and victims are compensated for their losses
from a compensation fund. The goals of the program are to:
·
promote communication between victim, offender, and the court;
136
·
require the juvenile offender to be accountable for paying restitution to the victim;
·
increase the juvenile offender’s competence and respect for the law; and
·
provide service to the community.
The program is geared primarily toward youth who are too young to be employed. They are
scheduled to perform community service under the supervision of the CREW program, and for
every hour they work, their victim is paid $5.00. The program is supervised by court personnel,
and youth work at projects such as the Graffiti Abatement program painting over graffiti that has
damaged community structures; cleaning streets, parks, and the baseball stadium; and special
projects at schools. Work crews also assist nonprofit organizations such as the Food Bank,
Salvation Army, and Veterans Hospital. The youth are credited for each hour of community
service work they complete. Initially, the program used funds from the Saguaro Rotary
Foundation’s Juvenile Victims Compensation Fund. The State now provides funding through the
Victims Compensation Fund (B. Bahrychuk, personal communication, September 13, 1999).
Wage Assignments. For employees with earned income, either voluntary or mandatory wage
assignments may be arranged to ensure payment of restitution. In a voluntary situation, the
offender makes arrangements with his or her employer to deduct from wages the required
restitution amount on a regular basis and forward payment to the proper agency. This can be a
convenience for offenders who may not want to handle the payments regularly or may not
manage money well. However, some small employers may not be accustomed to such
procedures and may not agree to do this at the request of an employee. Some employers may
require an official order or request from the court or another justice agency before setting up the
wage assignment process, but such orders may be made at the request of the offender.
Mandatory wage assignments usually are invoked after an offender’s restitution payments
are in arrears. However, in Florida and Alabama, State laws permit the court to issue an income
deduction order at the time restitution is ordered (Godwin & Seymour, 1999). In several states,
the court may order that the employer deduct a specific amount from the offender’s paycheck and
forward the payment to the restitution collection agency. Procedures for doing this are included
137
in the Maryland Division of Parole and Probation’s Policy and Related Documents for the
Collection of Restitution shown in Exhibit 6h.
Policy and Related
Maryland
Documents
Division of
forParole
the Collection
and Probation
of Restitution
Order for Probation and Earnings Withholding Order
A.
The court may issue an immediate and continuing earnings withholding order in an amount sufficient to
pay the restitution:
1.
At sentencing;
2.
When the defendant is placed on work release or probation;
3.
When the payment of restitution is delinquent.
B.
If a court orders an earnings withholding order:
1.
The Clerk of the Court immediately shall:
a.
Serve a copy of the earnings withholding order on any current or subsequent employers of the
defendant, if known;
b.
Mail a copy of the earnings withholding order to the defendant at the last known address or
place of incarceration of the defendant, if known.
2.
A defendant immediately shall notify the court and the Division [of Parole and Probation] of:
a.
Any objection to an earnings withholding order;
b.
The current address of the residence of the defendant, the name of the employer and the work
address of the defendant, or any change of employer, residence, or work address of the defendant.
3.
An employer who is served with an earnings withholding order immediately shall notify the court and
the Division [of Parole and Probation] of the following information:
a.
Any justification for an employer’s inability to comply with the earnings withholding order;
b.
The address of the residence of the defendant on the termination of employment;
c.
Information regarding the new place of employment of the defendant;
d.
That the defendant has been re-employed by the employer.
4.
Unless the information has previously been provided to the court, the Division shall notify the court by
using the Notice of Earnings Withholding (DPP-COL-2) of any current or subsequent address of the residence of the
defendant.
a.
When the offender has changed employment, the agent/monitor shall request that the Clerk of
the Court serve the earnings withholding order on the new employer.
b.
The agent/monitor shall send a Notice of Earnings Withholding form (DPP-COL-2) to the
Clerk of the Court, which includes the offender’s name, residence, employer and employer’s address (complete
business address), court’s docket number and tracking number, Parole and Probation’s case number and the
following paragraph:
“On _____________ the court issued an earnings withholding order in this case. The
offender has changed employers, and it is requested that the earnings withholding order be
served on the new employer.”
5.
An earnings withholding order is binding on each present and future employer of the defendant who
has been served with the order.
....
E.
The payment amount under an earnings withholding order shall be 20 percent of the earnings of a
defendant. If the restitution obligation of the defendant is considered to be delinquent, the court may impose a payment
amount in excess of 20 percent. Any amount ordered must be in accordance with all state and federal laws.
F.
A defendant or employer of a defendant who violates these provisions is subject to a fine not to exceed
$250.00.
G.
When it is determined that an employer or a defendant is not complying with an earnings withholding
order, the agent/monitor shall notify the court on the Supervision Summary (DPP-SUP-42).
138
139
Del Norte County, California
Superior Court
Notice to Employer/Payer
(a) You are required to deduct from the
defendant’s income the amount specified in the
income deduction order, and to pay that amount
to the Central Collections Unit.
(b) You are to implement the income deduction
order no later than the first payment date that
occurs more than 14 days after the date the
income deduction order was served on you.
(c) You must forward, within two days after each
payment date, to the Central Collections unit, the
amount deducted from the defendant’s income
and a statement as to whether the amount totally
or partially satisfies the monthly amount that’s
ordered to be paid.
(d) If you fail to deduct the proper amount from
the defendant’s income, you can be liable for the
amount you should have deducted, plus costs,
interest and reasonable attorney’s fees.
(e) You can collect up to five dollars ($5) against
the defendant’s income to reimburse the payer
for administrative costs for the first income
deduction, and up to one dollar ($1) for each
deduction thereafter.
(f) This order is binding until further notice by the
court or until the employee is no longer
employed.
(g) If the defendant is no longer employed, you
must instruct the Central Collections Unit, and
provide the last known address for the
defendant, and the name and address of the
new employer, if known. If this provision is
violated, you can be subject to a civil penalty of
$250.00 for the first violation and $500 for any
subsequent violations.
(h) You cannot fire, refuse to employ, or take
disciplinary action against the defendant
because of an income deduction order.
Violations of this provision subjects an employer
to a civil penalty not to exceed $250.00, and
$500.00 for subsequent violations.
(i) If you receive an income deduction order for
two defendants to the same payee, you can
combine the amounts that are to be paid in a
single payment, and identify which portion goes
to each account.
(j) If you receive more than one income
deduction order against the same defendant,
please notify the Central Collections Unit.
NOTICE TO DEFENDANT WITH AN
ORDER FOR INCOME DEDUCTION FOR
RESTITUTION
5) ENFORCEMENT OF THE INCOME DEDUCTION
ORDER MAY ONLY BE CONTESTED ON THE
GROUND OF MISTAKE OF FACT REGARDING THE
AMOUNT OF RESTITUTION OWED.
1) FEES MAY BE IMPOSED BY YOUR EMPLOYER IN
THE AMOUNT OF $5.00 FOR SETUP AND $1.00 FOR
EACH DEDUCTION.
6) YOU ARE REQUIRED TO NOTIFY THE CLERK OF
THE COURT W ITHIN SEVEN DAYS AFTER CHANGES
IN YOUR ADDRESS, EMPLOYMENT AND THE
CHANGES OF ADDRESS OF YOUR EMPLOYER.
2) THE TOTAL AMOUNT OF INCOME TO BE
DEDUCTED EACH MONTH IS ON THE FACE OF THE
ORDER.
3) THE INCOME DEDUCTION ORDER APPLIES TO
CURRENT AND SUBSEQUENT EMPLOYERS AND
PERIODS OF EMPLOYMENT.
7) THE COURT ORDER W ILL BE STAYED UNTIL THE
FIRST PAYMENT OF RESTITUTION IS MISSED. YOU
CAN APPLY FOR A HEARING TO CONTEST THE
ENFORCEMENT OF THE INCOME DEDUCTION ORDER
BY FILING PAPER W ORK WITH THE CLERK OF THE
COURT.
4) A COPY OF THE INCOME DEDUCTION ORDER W ILL
BE SERVED ON YOUR EMPLOYER OR EMPLOYERS.
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Exhibit 6i from the Del Norte County, California Municipal Court provides an example
of a computerized form for ordering income deductions for restitution. The forms are generated
from a Microsoft Access database. When the judge has signed the order, both the employer and
defendant receive copies with the instructions shown in the second part of Exhibit 6i.
A
variation of wage assignments may be implemented for incarcerated offenders as well. Several
custodial facilities, both adult and juvenile, require set-offs or deductions from money that
inmates earn or other funds they may receive. (See additional information in Chapter 7 on
collections.)
Parental Liability. Minors generally are not considered to be fully responsible for their
behavior and financial obligations because of their immaturity. Therefore, some jurisdictions
hold parents or legal guardians liable for restitution their children owe. Parental liability laws are
based upon the assertion that parents’ failures to supervise and control their children contribute to
their delinquency. However, this theory is challenged by some critics who argue that a child’s
mental illness, substance abuse, or peer influences may hinder parents’ attempts to monitor their
children. Parental liability laws also are criticized by some restorative justice proponents who
believe they diminish a juvenile’s personal accountability for his or her behavior (Godwin &
Seymour, 1999).
In the survey conducted for this project, slightly more than 16 percent of respondents
reported that parental liability for juvenile offenses was a means used for collecting restitution.
Parental liability may be “joint and several,” meaning that if the child does not fulfill his or her
restitution obligation, the parent or guardian is fully responsible for it. State laws may limit the
monetary liability based on the severity of the crime, whether it was a property crime or it
resulted in personal injury, and whether or not a firearm was used during the crime. State laws
vary as to whether parents are liable for restitution after a child reaches the age of majority.
Other alternatives are apparent among state laws for addressing unpaid restitution when a
juvenile reaches majority including the termination of orders, enforcing orders until they are fully
paid, and converting joint and several liability orders to civil judgments. Some laws regarding
141
joint and several liability stipulate that parents’ ability to pay must be assessed and they must
provide proof if they are unable to pay the restitution order (Godwin & Seymour, 1999).
Paid Work Opportunities. Many offenders do not have the means to pay their debts to their
victims without assistance in gaining employment. Often, offenders, especially juveniles, do not
have jobs or other sources of income and, therefore, cannot pay restitution. Several programs
have developed innovative approaches that help offenders earn money to pay restitution. Many
of these are juvenile programs, but similar strategies also might be used with adults.
In 1987, the Juvenile Probation Department in Lehigh County, Pennsylvania began a
recycling program to help youth earn money to pay restitution. They accepted only newspapers
and aluminum cans, and community residents had to drop off these items at a designated place.
The youth then sorted the items and turned them in for cash. The money went to the restitution
fund and was paid to victims owed restitution by the youth based on the hours the youth worked
in the recycling program. That first year, the department collected about 3,000 pounds of
recyclables. Later, Pennsylvania adopted mandatory recycling, and Lehigh County and the City
of Allentown allowed the Juvenile Probation Department to continue and expand their recycling
program. In 1995, the youth processed 4.6 million pounds of recyclables including newspapers,
aluminum cans, glass, plastic, cardboard, and telephone books. All money earned through the
recycling program goes to the restitution fund. Youth working in the recycling program and
elsewhere in the county at supervised community service sites are credited for the hours they
work, and their victims are paid from the fund based on what they “earn.” Recently, youth have
been involved in building Habitat for Humanity houses, and a garden project where the food
grown is donated to a local food bank (T. Ganser, personal communication, October 15, 1999).
142
143
The Pima County, Arizona Juvenile Court Restitution Accountability Program, discussed
earlier under the topic of community service, also offers employment opportunities for youth.
The Restitution Accountability Program provides youth with a pre-employment/job skills class to
prepare them for a successful work experience. The “Pledge-A-Job” component of the program
supplies job referrals and schedules interviews for youth over 16 years of age who have
completed the pre-employment/job skills training. Youth and their parents are required to sign
the program conditions, shown in Exhibit 6j, which stipulate they must pay two-thirds of their
net earnings as restitution. Their payments are made to the Clerk of the Superior Court who, in
turn, sends monthly payments to the victim. Workout, Ltd. (mentioned previously in Chapter 4)
was started in Colorado Springs, Colorado in 1974 by a local judge and the chief probation
officer, and it has been replicated in several other areas of the State. Referrals for the program
come from Juvenile Court, Juvenile Probation, the District Attorney’s Diversion Program, and
the Colorado Springs Municipal Court. The program has several work crews of five youth each
who are supervised by one staff member. The agency solicits jobs for the work crews, such as
contracts with building contractors to clean up construction sites, landscaping contracts, graffiti
removal, and light home repairs. Youth in the program receive a base pay of $3.00 per hour, but
they can achieve daily bonuses that raise their pay, which usually increases the rate to about
$5.00 per hour. Beyond these pay increases, the program gives youth incentives, such as
certificates for fast food restaurants, as rewards for good work. Most of the youth’s earnings are
paid to their victims for restitution, but they may keep 15 to 20 percent for themselves. Another
phase of the program is apprenticeships through which youth are placed individually with private
employers. During the first three months of their placement, they work for Workout, Ltd. and the
employer pays the program which, in turn, pays the youth. After three months, if the employer is
satisfied with the youth’s work and the youngster wants to continue in the job, he or she is hired
by the employer. The time youth spend in the program varies considerably -- from one month to
one-and-one-half years. Approximately 900 youth participate in the program each year. Funding
for the programs comes from the Division of Criminal Justice, Juvenile Probation Department,
the City and County governments, private foundations, and donations (B. Lehrman, personal
communication, September 14, 1999).
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In Denver, Colorado, the District Attorney’s Office runs a juvenile diversion program
with a work component. Eligible youth are first-time offenders, but they may have committed
either felony or misdemeanor offenses. The majority of youth in the program are 14 to 16 years
old, but about 14% are between 10 and 12 years old. Through the ARTT program – Acquiring
Restitution Through Talent – youth make various items that are sold, and the money earned is
used to pay restitution. Among the items the youth make are wooden pens and pencils, key
chains, kaleidoscopes, painted silk scarves, ceramics, and other items. They are sold at
conferences, fairs, and to various corporations. Not only does this program hold youth
accountable for paying restitution, but they also learn to work together, gain a sense of
accomplishment, and are not spending time on the streets. Besides the ARTT component, the
diversion program offers a comprehensive array of services including cognitive treatment, family
therapy, tutoring, and drug and alcohol screening. Youth generally stay in the program a
minimum of six months, and the average stay is twelve months. The Program Director estimates
about 60 percent of youth complete the program successfully, and of those who have successfully
completed, only four percent have committed further offenses. Youth who do not comply with
the program are returned for processing through court. The program is funded through the
District Attorney’s general operating fund and through a grant from the Colorado Division of
Criminal Justice (R. Huerter, personal communication, September 8, 1999).
The Juvenile Detention program in Coa (Kootemai County), Idaho developed the
W.I.L.D. program as a means for controlling the detention population. The program name stands
for Work In Lieu of Detention. Some youth are allowed to remain at home rather than being
detained, but they must report daily for work projects. The program has now expanded to
include work opportunities for youth who owe restitution and are not able to earn the money in
other ways. The program has developed several interesting contracts for work projects including
grounds maintenance of a local cemetery, cutting wood, and special projects in local schools
when the weather prohibits outside work. A part-time staff member serves as a mentor and
supervisor to crews of six or seven youth. Recently the program has instituted an employment
and life skills training component for youth that is conducted by VISTA volunteers (D.
Tenneson, personal communication, September 23, 1999).
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A variety of sources supply examples of other innovative employment opportunities for
offenders owing restitution, including the following:
·
In Erie, Pennsylvania, the Juvenile Probation Department has a nonprofit affiliate called
Erie Earn-It Janitorial Services, Inc. It has contracts to clean the courthouse, a public
library, and a social services agency. Youth perform the work in the late afternoons.
Seventy-five percent of their earnings are paid to victims, and the youth may keep 25
percent (Rubin, 1994; Welch, 1987).
·
In Quincy, Massachusetts, probationers in the “Earn It” program cleaned up a local
waterfront, and the difference was so apparent, small businesses began relocating into the
area (Welch, 1987).
·
The Denver Area Youth Services agency has a Rent-A-Teen program which contracts
with public housing programs to shovel snow, cut grass, and do some property
maintenance tasks for repossessed, unoccupied homes (Rubin, 1994).
·
Youth in Bend, Oregon chop wood for campers in State parks, clean irrigation ditches
and improve parks and playgrounds (Welch, 1987).
·
In Madison, Wisconsin, juveniles unload newspapers from trash-collection trucks and
reload them on trucks that take them to a recycling plant (Rubin, 1994).
·
In Grand Junction, Colorado, youth cut and maintain hiking trails through a contract with
the U. S. Forest Service (Rubin, 1994).
·
Youth in Waterloo, Iowa may be assigned to paint in nursing homes through a contract
negotiated by the court services agency (Rubin, 1994).
Assisting offenders to find employment can be a vital component of a restitution program
as well as the offender’s rehabilitation and reintegration into the community. The Tarrant
County, Texas Community Supervision and Corrections Department has the following policy on
providing employment assistance for adult probationers:
If a probationer is able to work, but is unemployed, the probation officer will take
appropriate measures regarding employment.
The following excerpts are from descriptions of the agency’s Employment Services Program:
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The agency has in place a strategy for achieving this objective. Its Employment
Service Program develops placements in the private and public sectors for
employment with regard to the offender’s respective interests, needs and skill
levels. The Employment Service Program notifies the referring Supervision
Officer of an offender’s activities while in the employment program.
The target population for this program is long-term, chronic unemployed felony
and misdemeanor offenders who are on community supervision in Tarrant
County. The average length of unemployment for those offenders currently being
served is 15 months. The average offender has a 10th grade education. Many of
these offenders have multiple barriers to employment other than their criminal
record.
Offenders are referred to the Employment Service Program if unemployed for 20
days or more or if working less than 20 hours per week. Offenders referred must
have a Social Security card and photo ID prior to being referred for services and
should be physically, mentally and emotionally capable of successfully
maintaining employment.
The supervising officer should complete the appropriate Form to Request
Employment Service. . . An appointment will be made for the offender to meet
with the Employment Service Program personnel. . . . Offenders will be referred
to the Employment Service Program by field and correctional supervision officers
to assist offenders as well as those with barriers to employment including Tarrant
County Community Corrections Facility residents and trainees who are being
released from the boot camp and substance abuse programs.
[An] Intake/Evaluation and interview will be completed to determine the
offender’s need(s) and the appropriate area to which they will be referred. . . . The
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offender will also be encouraged to attend job search workshops, job fairs and
other activities that will assist in locating full-time employment.
To successfully complete this program, the offender must:
·
Keep initial appointment scheduled by their referring officer
·
Complete the interview with Employment Service Program counselor/job
developer
·
Follow up and make use of the services offered (resume services,
examination of Job Bank book, access to Internet, Texas Workforce
Commission, computer job bank, etc.)
·
If referred to other agencies for training, JETS or Job search Workshop,
offender must complete all classes as required.
·
If referred to job leads, offender must follow-up. (In most cases the
offender must contact the prospective employer directly; in some cases the
counselor/job developer will contact the prospective employer for the
offender.)
(Community Justice Plan Program Proposal)
A program issue for those providing work opportunities for offenders is risk and liability.
Rubin (1994) recommends that the program should have insurance that will provide protection if
offenders are injured, if offenders cause injuries to others or damage property, and if staff are
negligent. The cost of insurance might be included in the program fees offenders are required to
pay. The Dakota County, Minnesota Juvenile Restitution Program has adopted the following
policy to address this issue.
Liability for Juveniles Performing Unpaid Work Restitution
Many juveniles perform unpaid work for the victim(s) or the community pursuant
to the Court’s order that restitution be made. When a juvenile will be making
restitution in this way, the juvenile and the parent(s) or guardian(s) sign a written
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contract to that effect. Because the unpaid work is performed pursuant to a Court
order and is agreed to in writing by the juvenile and the parent(s) or guardian(s),
claims and demands for injury or death of a person performing work restitution
are presented to, heard and determined by the legislature. This procedure was
established by Minnesota Statute 3.739, as of May 30th, 1979.
The restitution program also needs to consider the type of offense the offender has
committed and his or her personal characteristics when making job or community service
placements. Further, agency policies should address the information about the offender that can
be shared with work sites.
Restitution Centers. Restitution Centers are a special type of paid work opportunity for
offenders, and they are increasingly found in a variety of jurisdictions. They combine a
residential living arrangement with supervision and employment opportunities. Placement in a
restitution center may occur as a condition of probation, in lieu of incarceration, or as a condition
of parole following an offender’s incarceration. Generally, offenders are placed in restitution
centers when they owe a significant amount of restitution and/or they are unemployed and there
is minimal probability that they will find adequate employment on their own.
Lawrence (1989) conducted research on restitution centers in Texas and concluded they
were successful and provided a cost-effective diversion from prison. The programs reduced the
risk the offender posed to the community and curtailed the high cost of incarceration. Further,
the evaluation found a high rate of employment of participant offenders and significant money
collected for victim restitution.
Most restitution centers set criteria for offender eligibility which may include:

the type of crime committed (e.g., many centers exclude violent offenders, sexual
perpetrators, or defendants convicted of drug sales);

low level of risk to public safety;

reasonable expectation of employability (i.e., mentally and physically able to work); and

a minimum financial obligation (e.g., $500 or more).
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In addition to expecting residents to be fully employed for 40 hours per week, the South
Carolina restitution center program also requires offenders to perform 10 hours of community
service each week. Besides work-related assistance, the South Carolina Restitution Centers
provide or refer residents to other services, including:

substance abuse counseling;

adult education and literacy programs;

life skills education; and

transportation to work sites, medical and dental appointments, and other services.
Restitution Centers generally have specific policies about management of accounts and
how offenders’ earnings are applied to their obligations. The types of expenditures allowed
include:

restitution payments;

child support and alimony;

court costs, fines, and fees;

daily charges for room and board;

transportation expenses;

personal savings;

purchase of items required for employment (e.g., uniforms, tools); and

personal spending.
Incentives for Payment and Penalties for Nonpayment
A system of graduated incentives and sanctions is appropriate for restitution programs as
well as other criminal and juvenile justice interventions. Responding appropriately to offenders’
compliance or noncompliance with restitution orders increases the likelihood they will meet their
restitution obligations. Research conducted by the American Bar Association and reported by
Smith, Davis, and Hillenbrand (1989) found that closely monitoring offenders as soon as
restitution is ordered increases compliance. The study recommends intervening as soon as a
delinquency occurs before a pattern of noncompliance is established. Delinquent payments are
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most likely to occur early in the payment process or by the middle of an offender’s sentence
indicating that early and effective responses may successfully interrupt customs of nonpayment
(National Victim Center, 1997; Smith, Davis, & Hillenbrand, 1989).
A stairstep approach for incentives and sanctions is a good way to conceptualize this
process, as shown in Figure 6e, beginning at the lowest level of responses and continuing up the
“steps” as offenders either pay or fail to meet their restitution obligations.
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Incentives
Often, incentives receive minimal attention in the criminal and juvenile justice systems,
yet they frequently are more powerful in changing behavior than are sanctions or punishments.
Indeed, the “What Works” literature describing effecting interventions with offenders suggests
that positive reinforcements should be used four times more often than sanctions (Andrews, et
al., 1990). Based on Figure 6e, incentives might be grouped in at least six categories:
·
Verbal incentives (e.g., praise, approval, attention)
·
Written incentives (e.g., written commendations, letters to parents or the court praising
the person’s achievements)
·
Privileges (e.g., activities, travel)
·
Material incentives (e.g., financial rewards, gifts)
·
Supervision (e.g., less restrictive supervision from the justice system)
·
Freedom (e.g., increased independence for decision making and activities)
The following examples of incentives were mentioned by respondents to the survey.
Travel Privileges. The Alexandria, Virginia Probation and Parole agency states in its policies
and procedures on collecting, safeguarding, and disbursing client monies that, “payment status
shall be a consideration for client privileges, such as travel, etc.”
Saving on Restitution Fees. Several programs allow offenders to pay their restitution
obligations in installments. However, there is often an added charge for this arrangement. The
collection fee is used to offset the costs of processing the payments. When offenders pay their
restitution obligations at sentencing or within a given timeframe, these collection fees may be
waived, and the offender saves this money.
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Pretrial Diversion. Several programs allow offenders to be diverted from prosecution and
adjudication if they pay restitution and meet other qualifications. Their incentive for successful
completion of the program is having charges dropped and not having a juvenile or criminal
record.
A unique program has been operated by the Community Corrections agency in Jackson
County (Medford), Oregon for nearly 20 years. This is usually used in cases of first-time arrests
for shoplifting, forgery, and other similar theft offenses. It is presented to offenders as a deferred
sentencing alternative to jail or other corrections programs. To complete the Theft Program, the
offender must pay a $100 fee, list all thefts he or she has committed in the past three years, and
submit to a polygraph to determine the veracity of his or her list. When offenders pass the
polygraph examination, the program coordinator sets restitution and a payment schedule so they
may pay restitution to all victims within six months. In some cases, the program can be extended
another three months to give offenders time to make their payments. The restitution collected by
the program is returned to victims (both individuals and businesses) anonymously;
confidentiality is an important aspect of the program. A portion of the restitution collected is
taken to defray the costs of the program. The offender is granted immunity from prosecution on
any thefts he or she confesses to. If the victim of the theft cannot be located, the restitution is
donated to a charitable organization of the offender’s choice (J. Rodriquez, personal
communication, and program materials).
Possible Early Discharge from Probation. In some situations it may be possible to use early
discharge from probation as an incentive to encourage offenders to complete all conditions of
their probation, including paying restitution. The feasibility of this option depends on several
factors, including jurisdictional laws, judicial concurrence, the type of offense, and how realistic
it is that an offender can complete all conditions before the end of his or her sentence. Generally,
probationers must serve at least a certain portion of their sentence (e.g., half) before early
discharge is even considered. Probation officers who use this practice feel offenders often are
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motivated to complete their conditions to achieve an early discharge. Victims benefit by getting
their restitution more quickly.
Incentives in Custody Facilities. Incentives for payment of restitution also can be granted to
incarcerated offenders. Suggestions include (National Victim Center, 1997):
·
Increased commissary privileges,
·
Visitation privileges,
·
Special menu choices, and
·
Priority enrollment in popular programs sponsored by the prison.
Penalties for Nonpayment of Restitution
Survey respondents were asked to indicate the responses or sanctions used for
nonpayment of restitution by offenders. Their responses are shown in Figures 6f, 6g, and 6h.
Interestingly, the most severe sanction – Revocation of Probation/Parole – was reportedly used
by the largest percentage of programs, followed in frequency by the mildest sanction – verbal
warnings. However, as shown in Figures 6f, 6g, and 6h, there are multiple options for
responding to nonpayment of restitution orders.
154
155
A variety of sanctions were described in the survey responses and literature that
correspond to the types of graduated approaches mentioned previously. The National Victim
Center (1997) recommends allowing victims the opportunity to have input into the type(s) of
sanctions imposed for nonpayment. They also mention house arrest and curfews as sanctions
besides those presented in the survey responses.
In Delaware, courts may hold an offender’s driver’s license as security for fulfillment of
restitution orders or other costs. If the offender defaults on payments, the driver’s license is
suspended. In Oregon, State law provides that a court may report any default in payment of
restitution to the consumer reporting agency. In the State of Washington, the Department of
Corrections can extend the offender’s parole term up to ten years after the end of the formal
supervision period in order to collect restitution (Godwin & Seymour, 1999).
The Dakota County, Minnesota Community Corrections agency has outlined both
incentives and sanctions used to encourage offenders to pay restitution. These are listed
correspondingly below.
Dakota County Community Corrections
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Incentives
·
Disincentives
Breakdown monthly payments into
·
smaller more manageable increments
notices
($100/months, $25/week, $3/day)
·
Positive praise and reinforcement
·
Assist with money
·
·
Require budget review (including
cigarettes, cable)
counseling
·
Increase reporting frequency
Maintain individual offender
·
Use arrest and detention/probation
payment records
·
Institute revenue recapture or wage
assignment
management/consumer credit
·
Monthly billings/delinquent payment
violation
Decrease reporting frequency with
·
Extend probation term
full payments
·
Refer for a civil judgment
Further enhancements proposed by the program for both juvenile and adult offenders include:
·
Referring juveniles automatically to work crews if they are more than 30 days delinquent
in payment,
·
Placing youth who fail to participate in work crews or earn restitution at a juvenile center,
·
Bridge outstanding juvenile restitution to adult files,
·
File a civil judgment concurrent with delinquent restitution,
·
Implement interest on late payment of restitution,
·
Implement adult work crew and refer all offenders who are delinquent in payment,
·
Remove offender’s driver’s license when payments are delinquent,
·
Violate probation automatically when payments are delinquent, and
·
Disallow out of state transfers when restitution is owed.
The Alexandria, Virginia Circuit Court provides information about court costs to
offenders. Possible sanctions for nonpayment are listed in Exhibit 6k. Further, the Alexandria,
Virginia Probation and Parole Department’s policies and procedures state that accounts
delinquent for more than 40 days can be submitted to a collection agent. The agent may “use any
157
available means to collect them as any other civil judgment, including wage and vehicle
attachments” (p. 2).
Alexandria,
InformationVirginia
About Court
Circuit
Costs
Court
If you do not pay your court costs, miss a payment, or do not do community service
as allowed by the Judge, any or all of the following is likely to happen:
·
·
·
·
·
·
·
·
·
A warrant for your arrest could be issued
If you are on probation and/or have a suspended sentence, the court could sentence you to
serve the sentence that was suspended
The state may take any tax refunds, lottery winnings or other funds owed to you by the
Commonwealth
The Division of Motor Vehicles will suspend your license ten days after the due date of a
missed payment
You may be charged with the crime of contempt of court and receive a sentence of up to
sixty days and/or a fine of up to $500.00
The Department of Motor Vehicles will revoke your car registration and plates and refuse
to issue new ones until costs are paid
The state may take action to attach your property or garnish your wages
The Judge will remove you from jail programs like work release, weekend service, home
electronic monitoring, etc.
Anyone on parole can be revoked and returned to prison
Exhibit 6l contains a list of possible sanctions used by the Community Juvenile
Arbitration Program in Lexington, South Carolina. This program is a diversion program that was
described earlier in this document. The sanctions listed in Exhibit 6l might be imposed by a
volunteer arbiter for first time offenders as, or in addition to, payment of restitution. The list is
displayed here because it contains many options that might be useful in situations where
offenders (especially youth) are not paying restitution. Several of the sanctions have an
educational, treatment, or developmental enhancement aspect and are not punitive in the usual
sense assigned to sanctions.
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Community Juvenile Arbitration Program
Lexington, SC
Categories of Sanctions
It is strongly urged that when determining sanctions, positive, organized activities such as football, band,
cheerleading, etc. not be restricted.
Community service (maximum of 50 hours)
Chores at home (parent enforced)
Monetary restitution (maximum of $200.00 in form of
money order)
Newspaper articles re: juvenile crime and juvenile
good deeds
Apology (written and/or verbal) to victim, officer, and
parents
Suspension of driving privileges
Curfews
Home restrictions (parent enforced)
Reports to Arbitrator as instructed
Phone restrictions (parent enforced)
Letters of thanks to parents, officers and victims
Participation in school activity, i.e.
Students Against Drunk Driving meeting
Tour Lexington County Sheriff’s Department
Seek employment
Tour Manning Correctional Institution through
Operation Behind Bars
Inform others of law violations, i.e. make posters to
be placed in store window or school
School work improvement
Create artistic impression relevant to offense or arrest,
i.e. draw picture of forest fire – resulting from child
starting a small fire in woods behind his/her house
School attendance improvement
Referrals to helping agencies and community
resources, i.e. counseling, family planning, etc.
Observe general sessions court
Interviews (store owners, police officers)
Contribution of money/work to charity
Adopt-A-Highway (trash pick-up Saturday mornings)
Enrollment in educational program (ENCARE, Get
Smart, Hunter Ed.)
Restriction from co-defendant
Restriction from victim’s property
Teddy bear donation to Lexington County Sheriff’s
Department for children that have been abused or
witnessed a crime
Tour of Department of Juvenile Justice Midlands
Evaluation Center (Project Right Turn)
Daily log of activities
Alcohol/drug assessment
Topical essays
Job applications
Book reports
Establish savings account
Several programs have devised ways of pressuring offenders into meeting their restitution
obligations. Welch (1987) reports that in Toledo, Ohio, youth who fail to show up for work
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assignments to pay their restitution may be violated and detained overnight. The next day, a
workcrew van stops at the detention center to pick up the detained youth. This not only gets the
attention of the youngster who was detained, it also puts the other youth in the van on notice that
restitution must be paid.
The use of checks, and obvious potential for passing bad checks in the process, has led to
some innovative practices in some jurisdictions which are not limited to circumstances involving
restitution, but can be applied to restitution easily. District Attorneys in Arkansas have been
empowered by state law to issue misdemeanor warrants for bad checks amounting to less than
$200 and felony misdemeanors for bad checks amounting to more than $200. The Hot Checks
programs that have evolved in District Attorney’s offices across the state to assist individuals and
businesses in recovering losses incurred by the receipt of bad checks are a form of direct restitution
to the victim that can potentially avert the need for formal judicial proceedings.
Programs in small rural counties are using newspaper advertisements and the local media
to call the public’s attention to the large number of warrants issued each year for bad checks. For
example, the District Attorney’s office in Montgomery and Polk Counties in Arkansas takes out a
full-page advertisement in the local newspaper to publish all of the active warrants for bad checks
and the amounts owed in the county. According to Teresa Craig at the Montgomery County
District Attorney’s Office, “we gave them plenty of warning with newspaper ads and radio
announcements that their names are going into the paper. People hate to see their name and their
debts published, so many of them come up with the money” (T. Craig, personal communication,
October 27, 1999). In October 1998, the publishing of 264 warrants brought in $20,000 of
monies owed on bad checks in Montgomery and Polk Counties. As a result of the Hot Check
initiative, the District Attorney’s Office is collecting between $100,000 and $125,000 annually.
The success of the initiative encouraged the District Attorney’s office to use similar means to
collect on restitution orders in default. They published the names of offenders in the districts who
failed to make their restitution payments and the amounts they were in default in the county
newspapers. Between the two counties, the ads brought in $40,000 and motivated many offenders
to come into the office to schedule payment plans.
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In another effort, Henry Morgan, the Clark County, Arkansas District Attorney offered a
month-long Hot Check Amnesty in August 1999 in an effort to collect old outstanding warrants.
To promote the Hot Checks Amnesty and to increase public awareness of the problem, the office
issued press releases to the newspapers, public television, and local radio. They distributed bright
orange Hot Check Amnesty posters and buttons around the community and to every merchant,
and the District Attorney and his staff spent a half-day in the downtown districts of each of the
communities speaking to the people on the street about the importance of paying off bad checks.
A grocery store owner for whom the office had previously collected more than $100,000 took out
an ad in the newspaper to thank the staff at the Clark County District Attorney’s Office for their
efforts. At the end of the month, the office had recorded $20,000 in payments for bad checks. One
month later, in anticipation of a newspaper ad that would publish the names and amounts of the
remaining 180 active warrants, offenders paid an additional $10,000 (B. Ursery, personal
communication, October 26, 1999).
Monetary sanctions are another type of penalty often employed as a consequence for
nonpayment in an effort to increase the likelihood offenders will meet their restitution
obligations. In Maryland, the Division of Parole and Probation charges offenders a two percent
collection fee. However, if payments are missed, offenders may be referred to the Central
Collection Unit of the State’s Office of Budget and Management where a 17 percent collection
fee is charged.
Many States allow restitution orders to be converted to civil judgments (as discussed in
Chapter 5), and several allow for the extension of probation and/or continuation of the period
during which restitution is owed. For example, in the State of Washington, the following
extension can occur:
When the juvenile reaches the age of 18, or at the conclusion of juvenile court
jurisdiction, whichever occurs later, the superior court clerk must docket the
remaining balance of the juvenile’s legal financial obligation in the same manner
as other judgments for the payment of money. The judgment remains valid and
enforceable until ten years from the date of its imposition. The clerk of superior
court may seek extension for an additional ten years prior to the expiration of the
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initial 10-year period (RCW 13.40.145 and RCW 13.40.190(1), RCW 13.40.192
as cited by D. Lee, 1999).
Although judges have traditionally been reluctant to revoke probationers due to a failure to
pay restitution because of concerns about the constitutionality of such measures, increasingly the
courts are showing support for incarcerating offenders who demonstrate a willful failure to pay
restitution.
In People v. Martinich, 685 N.Y.S.2d 838 (N.Y.Sup.App.Div. Feb. 1999), the defendant
was sentenced to five year’s probation and ordered to pay $71,000 in restitution for the crimes of
grand larceny and forgery. Subsequently, the defendant failed to make restitution payments on
eight separate occasions and the county court scheduled a hearing regarding this nonpayment
where the defendant offered to make payment at a reduced monthly rate. The defendant
acknowledged the court’s power to revoke his probation, and that is exactly what the court did.
Defendant was sentenced to a prison term of two to seven years, with continued payment of
restitution. Upon appeal, the appellate court affirmed the district court, rejecting, among other
arguments, the defendant’s contention that he was being unconstitutionally imprisoned for his
indigence (citing Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221). The court
noted its response in similar circumstances, specifically that "having received the benefit of his
bargain, defendant should be bound by its terms." (People v. Felman, 141 A.D.2d 889, 890, 529
N.Y.S.2d 400). The appellate court further cited the probation department’s thorough submission
of facts regarding the offender’s financial and employment status and affirmed that, with the
factual record fully before it, the decision to revoke was squarely within the discretionary power of
the district court (Probation and Parole Law Reports, 1999).
Another example of judicial revocation took place in Montana where an offender (an
attorney), in 1987, was given a suspended sentence and ordered to pay more than one million
dollars in restitution to investors whom he had defrauded in a limited partnership scheme. As of
October of 1999, he had paid a total of $7,735. In 1992, however, he was brought back to court
and his suspended sentence was revoked, resulting in a five-year incarceration (Thackeray, 1999).
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CROSS-JURISDICTIONAL MONITORING AND ENFORCEMENT
At times, it is necessary or advantageous for offenders to move from a county or state
where their crime was committed and where they are supervised and held responsible for paying
restitution to another jurisdiction. Many issues must be considered when the justice system
authorizes such a transfer, and a particularly important concern is how to ensure that victims will
receive full restitution for the losses they have incurred.
Both intra- and interstate transfers may affect monitoring and enforcement of restitution.
Among the survey respondents, few addressed this issue, and those that did treated it quite
differently. Therefore, it is difficult, without evaluative studies, to claim that one approach
works better than another. However, it is vital that jurisdictions develop policies so there is no
question about responsibilities for monitoring, enforcement, collection, and disbursement of
restitution funds.
Intrastate Transfers
Policies regarding intrastate transfers of offenders owing restitution vary from state to
state. In New York, Probation Administrators have developed a policy to recommend the
“transfer [of] (all powers and duties) to the receiving Court and its probation authorities.” When
approved by the court, this allows “the Court of the receiving jurisdiction [to have] all of the
powers of the Court of the sending jurisdiction. . .” The policy goes on to state that the
“reciprocal agreement to collect restitution funds and distribute them to the designated victims
eliminates the need for the sentencing Court to retain powers and duties. In addition, all
violations and final dispositions can be conducted in the receiving jurisdiction” (Orders of
Intrastate Transfer of Probation Supervision, New York, 1998). The South Carolina Department
of Probation, Parole, and Pardon Services has adopted a very similar policy that requires the
receiving county to collect and monitor offenders’ restitution payments.
Interstate Transfers
Interstate transfers of offenders are managed in accordance with the Interstate Compact
for Adult Offender Supervision. Contrary to the State policies cited above, the Interstate
Compact stipulates that the sending jurisdiction (State) will collect and monitor the offender’s
restitution payments. However, a receiving State may be asked to assist in instances where the
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offender fails to pay. The receiving supervising jurisdiction may check on the offender’s
financial status and advise him or her to catch up on payments.
General Considerations
Whether the sending or receiving jurisdiction monitors and enforces payment of
restitution is not as important as having their respective responsibilities clearly outlined and
understood by both jurisdictions, the victim, and the offender. The Maryland Division of Parole
and Probation Operations Manual contains the following statement about transfers that raises
important issues for sending jurisdictions to consider.
If an offender with an unpaid balance requests permission to transfer to another
state, attempt to collect all monies due in full prior to requesting a transfer. If the
balance cannot be paid in full, the offender shall have all payments up to date as
agreed to in the payment plan and permission for the transfer must be requested
from the court/Parole Commission. If approved for transfer, the case will be
handled as any other case being transferred. However, the offender must be
reinstructed regarding his/her payment obligation and provided with sufficient
envelopes to pay in full.
Several key issues are addressed in this paragraph that should be considered for both
inter- and intrastate transfers. First, since transfer is usually at the request of and for the
advantage of the offender, stipulations that safeguard the victim’s interests are quite appropriate.
Maryland’s policy contains three important recommendations that should be considered before a
transfer is approved for an offender owing restitution:
·
Stipulate that the offender must pay the balance of any restitution owed before granting
the transfer;
·
If that is not feasible, at least ensure the offender is current with restitution payments
before granting the transfer; and
·
Before any transfer occurs, provide detailed instructions and necessary materials for the
offender to make restitution payments from the new jurisdiction.
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Several questions should be posed and answered within restitution program policies on
inter- and intrastate transfers, including the following:
·
Who will maintain and update information on victims (i.e., the sending or receiving
jurisdiction)?
·
How will victims be notified about any changes regarding their case?
·
Which jurisdiction (sending or receiving) will actually disburse funds to the victim (i.e.,
will the receiving jurisdiction collect and disburse to the victim; will the receiving
jurisdiction collect and turn monies over to the sending jurisdiction to disburse, or will
the sending jurisdiction both collect and disburse)?
·
To whom will victims address questions or concerns about their restitution payments?
In determining procedures regarding cross-jurisdictional disbursement of restitution,
those making decisions should ensure that changes made to accommodate an offender’s need or
desire to move to another jurisdiction do not inadvertently affect the victim negatively. For
example, if the sending jurisdiction has proactive policies for victims (such as ensuring
restitution is disbursed quickly upon receipt and making other funds available when offenders
default on restitution payments) but the receiving jurisdiction does not have comparable
procedures, the victim may be disadvantaged if all disbursement issues are handled by the
jurisdiction with less stringent policies.
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