Impediments to the Recovery of Restitution by Crime Victims
Harland, Alan T., Rosen, Cathryn J., Violence and Victims
Restitution is unique among criminal justice policies by virtue of the widespread support it has attained from many diverse constituencies. Restitution has received such universal praise as a panacea for victims of crime that in recent years a number of American jurisdictions have adopted legislation that creates a presumptive norm that restitution be awarded in appropriate cases. Despite popular support for its increased use and enactment of enabling legislation, restitution continues to be underutilized in actual case dispositions. The authors suggest that the underuse problem will not be cured and the powerful potential that restitution holds as a criminal justice sanction will not be realized until a consensus regarding the definition of restitution is achieved, significant gaps in the technical data about how restitution is effectuated are closed, and practical impediments to awarding and collecting restitution are dissolved. These goals, in turn, cannot be met until policy makers confront and begin to resolve the inherent conflicts posed when a restorative sanction, such as restitution, is pursued in a criminal justice system that is primarily punitive in nature.
Statements on criminal politics, particularly from those with the burden of responsibility, are usually filled with answers. It is questions we need. (Christie, 1978.) (emphasis added)
A decade ago, Nils Christie offered the foregoing admonition in his discussion of the resolution of criminal conflicts through a victim-oriented court in which reparation by the offender would be the "first and foremost consideration" (1978). The themes of restitution and the victim's role in the criminal justice process have since been elevated to an unprecedented level of prominence in the criminal politics of the United States and internationally. Indeed, a virtual industry of programs, associations, advocates, and technical assistance experts has emerged, brimming with answers, "with the skills and experience to help make restitution work in your community." (RESTTA, 1988).
A postulate of the present discussion, however, is that long-term growth and survival of any industry, especially in the desultory market place of criminal justice, are jeopardized to the extent that its research and development operations are allowed to be eclipsed by ideological fervor and the momentum of its promotional, sales and training forces. In the restitutive sanctions business, in particular, despite the extreme confidence with which restitution is being widely promoted, very basic disputes persist about the fundamental nature and effects of product being so aggressively marketed, and the policies and procedures by which its use should be regulated. The aim of the present inquiry is to highlight some of the essential questions underlying those disputes, in response to Christie's challenge, which, in many respects, remains as disconcertingly cogent today as it was a decade ago. The role of restitution into the next decade and beyond may be determined in no small part by the significance that key decisionmakers in the juvenile and adult fields choose to attach to these enduring questions, and the integrity, energy, and resources invested in their efforts to respond.
THE UNIQUELY UNIVERSAL APPEAL OF RESTITUTION
Professional and popular opinion continues to be notoriously divided about the empirical and logical wisdom of almost every facet of criminal justice policy, over the relative emphasis upon retributive vs. utilitarian goals and sanctions (see e.g., Harland & Rosen, 1988), and even over the general scope and nature of the victim's role in the criminal process (McLeod, 1986). In perhaps unique contrast, the idea of requiring offenders to make restitution for the harm attributable to their crimes appears by every available indicator to command an almost universal level of favorable interest. And whether anything else can be said with assurance about developments in the definition and practice of criminal restitution in recent years, support for the concept in the 1980s has continued to find voice among an increasingly diverse and prominent constituency.
Internationally, restitution appears strongly among the recommendations of the Council of Europe's Committee on Crime Problems. In its 1985 Strasbourg report, for example, on the position of the victim in the framework of criminal law and procedure, the Council's Committee of Ministers recommends that at sentencing "great importance should be given ... to compensation by the offender to the victim ... (and that) existing limitations, restrictions or technical impediments which prevent such a possibility from being generally realized should be abolished" (Council of Europe 1985). Similarly, in its 1985 General Assembly resolution on the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, the United Nations recommends that: "Governments should review their practices, regulations and laws to consider restitution as an available sentencing option in criminal cases (United Nations General Assembly, 1985: Annex A-9).
In the United States, heightened attention to restitution in criminal cases continues to surface among such otherwise antagonistic sources as the American Civil Liberties Union (Stark & Goldstein, 1985) and the National District Attorneys Association (NDAA, 1986). It has had long-standing approval in the American Law Institute's Model Penal Code, the National Council on Crime and Delinquency's Model Sentencing Act, the 1967 President's Commission on Law Enforcement and Administration of Justice, and numerous other prestigious sentencing proposals (Harland, 1978; 1982). More recent endorsements have come from legal groups such as the American Bar Association (ABA, 1983), and in National Conferences of the Judiciary on the Rights of Victims of Crime, and Victims and the Courts (McGillis, 1985). In its statement of Recommended Judicial Practices, for example, adopted by over 100 trial judges from 50 states, D.C., and Puerto Rico, the latter group expressed the belief that judges should order restitution in every case unless there is a pressing reason for not doing so. (U.S. Department of Justice, National Institute of Justice 1983). Further judicial support for criminal restitution also continues to manifest itself in the burgeoning federal and state case-law (see, e.g., Note, 1984 (Federal); Note 1987 (Washington State); Comment, 1987 (Louisiana), including approval by the United States Supreme Court (Bearden v. Georgia, 461 U.S. 660,1983).
Further indication of professional support for restitution can be found in the emergence of specialized programs in the late 1970s and early 1980s in the adult process (Hudson, Galaway, & Novack, 1980; McGillis, 1985), and even more recently in the juvenile courts (Warner & Burke, 1987). In both systems, strict enforcement of restitution has become a relatively routine component in the design of programs of intensively supervised probation (Harland & Rosen, 1988), and mediation and victim offender reconciliation (VORP) (McGillis, 1985; Worth, 1987).
The growing list of champions in the restitution cause can be drawn out considerably further to include almost every law student who has prepared a Note or Comment on the subject as part of the rites of passage of law-review editorial service (e.g., Note, 1986; Note, 1987; Comment, 1984; Comment, 1987), representatives of religiously affiliated organizations (e.g., Van Ness, 1986) and academic commentators echoing earlier calls by Barnett (1977) for a paradigmatic shift toward a "restitutionary approach" to crime and the criminal (Colson & Benson, 1980; Abel & Marsh, 1984). By far the most ardent, visible, and probably influential advocacy of restitution in the 1980s, however, has come from the federal government.
In 1982, the President's Task Force on Victims of Crime offered numerous recommendations in support of criminal restitution, including one to legislative and executive branches, at both the state and federal level, that legislation should be proposed and enacted to require restitution in all cases, unless the court provides specific reasons for failing to do so (President's Task Force, 1982). Also in 1982, the Victim and Witness Protection Act (VWPA) required for the first time that federal sentencing judges must state reasons on the record if no restitution or only partial restitution is ordered (18 U.S.C s.3579 (a)(2) 1983).1 In congressional debate over the new law, proponents declared that restitution should be "the expected norm, and no longer an afterthought" (Sen. Heinz), and that "It is the intent of Congress that judges order restitution in each and every case where the court finds there has been property loss or injury to the victim" (Sen. Laxalt) (128 Congressional Record S13063, SI3064, daily ed. October 1, 1982). In essence, restitution in this view becomes the presumptive norm in disposing of criminal cases, comparable to a prescribed sanction under a sentencing guidelines approach in which judges may depart from the expected norm, but only if reasons for doing so are articulated for the record.
Beyond its immediate impact upon the federal criminal justice system, the VWPA was intended to provide a model for action by state and local officials (Sen. Laxalt, 128 Congressional Record SI 1437, daily edition September 14,1982). Partly as a result of this influence (Note, 1987a) as well as other models such as the Uniform Crime Reparation Act (Note, 1983), and the uneasily converging advocacy and lobbying efforts of victims' rights, jail overcrowding, and law-and-order groups (see e.g., Avery and Weiner, 1982; Note, 1984d), the last decade has been marked by a flurry of statutory activity pronouncing legislative support for criminal restitution (Harland, 1982; Notes, 1983,1984c, 1986,1987, 1987a) with the result that "most states have enacted or strengthened their restitution laws" (Comment 1985a: 683).
Correlates of Injustice
In the face of such uniquely extensive political, professional, academic, and popular approval, it is perhaps not surprising that restitution has been hailed by some of its most unabashed proponents as "an economically and socially desirable approach to sentencing" (Casson, 1983), "a powerful dispositional option" (Warner & Burke, 1987), and even as "the ultimate justice." (128 Congressional Record HS207, daily ed. September 30,1982 statement of Rep. McCollum). Consequently, to the extent that criminal cases are ever disposed of without thorough consideration for providing restitution, they would appear to be egregious departures from an apparently universally recognized standard of justice. Accordingly, measuring and explaining the extent to which such departures exist in today's criminal process constitutes, in essence, an inquiry into the correlates of injustice, and must surely feature prominently among the priorities of leaders in the restitution field and the justice community in general.
MEASURING DEPARTURES FROM A PRESUMPTIVE RESTITUTION NORM
Since the resolutions of the European prison congresses at the turn of this century (Schafer, 1970), through assertions by leading proponents in the last few decades (Cohen, 1944; Schafer, 1970; Van Den Haag, 1975), and continuing into the more recent commentaries (Galaway, 1988; Castellano, 1988; West & Bazemore, 1988), there has been consistent agreement that, despite its widespread appeal, restitution is an underutilized element of criminal case dispositions. The recent proliferation of legislation and programs designed to increase attention to criminal restitution also reflects assumptions about avoidable failures to pursue restitution in the criminal process. As we shall see, however, when one turns from the realm of speculation to examine research data that would lend specificity to such assumptions, one is confronted with an almost total lack of empirical evidence on the nature and extent of the underuse problem. Any assessment of whatever progress has been made toward increasing restitution use in recent years must frankly acknowledge the continuing accuracy and importance of the following observation, made over a decade ago by one of the leading contributors to the restitution literature: "More adequate reporting of the nature of restitution and the extent of its use is badly needed" (Galaway, 1977).
To the extent that the foregoing baseline information deficiency represents an impediment to key policymakers and planners trying to assess the likely efficacy of different measures intended to increase restitution use, it suggests the importance of asking:
Why, after more than a decade of virtually unrelenting political, professional and popular advocacy of restitution, do we remain so essentially unclear about even the extent to which it is used or neglected in the processing of criminal cases?
The question may be approached on two quite distinct levels. The most obvious target is to focus upon technical gaps in the system's ability to provide readily accessible data, drawing attention to such matters as who should bear the responsibility at various stages of the criminal process for generating and documenting records of restitutive obligations, dispositions, and outcomes. Before one can address such questions, however, a logically prior conceptual line of inquiry is required to try to arrive at some working consensus or shared understanding about what should be counted as restitution in the first place. In research terms, the task is to operationalize the dependent variable under scrutiny, and as a policy matter the challenge is to clarify which among the numerous possible sanctions that have been categorized by different commentators as forms of restitution ought to be considered essential in the determination of whether or not a particular case disposition satisfies the requirements of restitutive justice.
When most people express their support for restitution as a routine response to criminal wrongs, it is probably safe to say that what they have in mind is a rather straightforward notion of offenders compensating those victims most directly affected by the offense for the loss or injury they sustained. Usually, this idea of restitution invokes images of some form of monetary, or less often, personal service reimbursement to compensate for the value of stolen or damaged property, or other tangible losses attributable to the offender's criminal conduct, such as medical expenses billed in connection with injuries sustained by victims of personal offenses. If X steals $100 from Y, or does $100 worth of damage to Y's property, or criminally injures Y to the tune of $ 100 in medical expenses, disposition of the case without some provision for X to return or repair the property or to provide $100 worth of compensation to Y would constitute a simple example of a prima facie unjust departure from the presumptive restitution norm.
The concept of restitution, however, has been taken by some advocates and in some laws and programs well beyond such instinctively obvious terms, to include compensation for members of the crime victim's family; less straightforward harms to victims themselves, such as pain and suffering, mental anguish, loss of consortium, and prospective loss of earnings; "restitution to society" through performance of unpaid labor/community service or in the form of a fine including "restitution fines" (West & Bazemore, 1988) and/or costs of the criminal investigation, prosecution, and correctional treatment; and multiple or punitive damages (see generally, Harland, 1982; 1982a). Whether case dispositions neglecting these and other, more absurd extensions of the concept - even the death penalty has been called a form of restitution - would or should prompt an equally certain demand for explanation as departures from a presumptive restitution norm is far less clear.
What is clear is that, with few exceptions (e.g., Thorvaldson, 1986), surprisingly little attempt has been made in the literature to question the philosophical and practical validity of many of the claims that a particular sanction should or should not be considered to fall meaningfully under the rubric of criminal restitution.
Restitution to Society? Without question, much if not most of the instinctive appeal and widespread support of restitution in recent years is attributable to its identity as a victims' issue. The call for restitution has become an integral part of America's victims' rights movement (McGillis, 1985). In particular, the notion that restitution should be a presumptive norm in criminal cases has been advanced exclusively in victim-oriented contexts such as the President's Task Force on Victims and in the Victim and Witness Protection Act.
Consequently, those who would extend the reach of the restitution norm to embrace the idea of restitution to "society" or to the "community," or "community service restitution," must perhaps bear a special burden of conceptual clarity and persuasion, if for no other reason than to debate priorities in the inevitable instances where the victim's interest in restitution may be jeopardized by the analogous interest being suggested for the state or the community.
Community service, for example, has been described as a form of restitution to society by many of the leading authorities in the restitution business, and it has been widely accepted as such by legislators, practitioners, and prominent criminal justice researchers and academics (Galaway, 1977; Austin & Krisberg, 1982; Schneider, 1985; McDonald, 1987, and foreword by N. Morris; Rubin, 1988; Klein, 1988; Castellano, 1988).2 Many community service programs, however, have little or nothing to do with individual crime victims, and may actually be antithetical to victims' interests in restitution in several ways. In the narrowest sense, community service may detract from realization of the restitution norm to the extent that performance of unpaid labor may consume time available during which the offender might learn skills or seek or extend paid employment to facilitate or expedite compensation of the victim. More direct conflict occurs if community service is substituted as an outright alternative to restitution to the victim at sentencing, or after failure to pay in lieu of revocation or extension of probation, and more broadly to the extent that community service programs may otherwise find themselves in competition with victim restitution programs for clients, staff, funding, and other system resources.
Moreover, unlike victim restitution that is based upon (and limited by) a case-by-case determination of victim injuries, the "harms" on which the offender's community service liability is predicated are far less specific, and the metric against which the amount of service owed is assessed tends to be no less arbitrary than the amount of a fine, probation, incarceration, or any other penal rather than compensatory sanction. Calling unpaid labor a form of restitution because the offender thereby "pays back" the community does little to distinguish it from a monetary fine that could equally be said to pay back society by contributing directly to its treasury. Given this, and the obviously significant differences and potential conflicts between victim restitution and community service, it is perhaps not unreasonable to question whether community service has any claim at all to be part of the presumptive norm of restitution, and to ask why it is useful to continue to treat the two sanctions as merely different examples of a uniform concept.
Even with a relatively narrow understanding of restitution to include compensation for property loss, damage and other readily ascertainable material harms such as medical expenses, the problems of obtaining and maintaining a measure of the level of restitution activity in any particular jurisdiction remain sizable.
The program evaluation and survey literature has been almost entirely limited to process descriptions of often small, unstable, specialized programs that, especially in juvenile courts influenced by RESTTA, frequently include community service cases in their restitution caseload estimates. Many programs surveyed may not continue to operate after trial funding periods, and/or have been too recently begun and are too few in number to constitute reliable indicators of more general practices in the processing of criminal cases.
Studies of the extent to which restitution has been a factor in the routine disposition of criminal cases have also been extremely limited. Estimates have been generated from case records and/or practitioner interviews of the percentage of probationers ordered to pay restitution in a few jurisdictions, but fall far short of identifying cases in which losses may have been sustained but for which no restitution or only partial restitution was ordered and/ or paid. Legislative provisions such as the VWPA's requirement that sentencing judges acknowledge and explain such cases and similar provisions at the state level (e.g., Iowa Code Ann. s. 907.12(4) 1978) remain to be examined empirically to determine the extent and nature of judicial compliance. Elsewhere, information about restitution and other conditions of probation is rarely recorded in routinely available court reports, and although recent laws providing for victim losses to be recorded in victim impact statements offer some promise of increased information about restitution at the sentencing stage (McLeod, 1986), enormous gaps in our knowledge persist for the majority of felony and especially misdemeanor cases sentenced without benefit of victim input or a presentence report of any kind. Restitution information (losses, orders, payments) is even less likely to find its way into routine court statistics in connection with other dispositions, such as pretrial diversion/ dismissal, and other cases not handled via full-scale channels of prosecution, such as probation and parole revocations based on new offense behavior.
Information deficiencies at the point of restitution imposition (i.e., gaps in knowledge about losses and restitution orders, and the relation between them) are equally glaring if the question of underuse is raised from the enforcement end (i.e., gaps between amounts ordered and paid by offenders by the time criminal justice control lapses). Once again, most of the available data are from specialized programs rather than routine case processing. In this latter context, if collection data are available at all, they tend to be reported in terms of aggregate payment amounts rather than in terms of offender- or victim-specific compliance results. Evaluations of specialized program efforts give some source of optimism in the sense that in-program success rates have sometimes been reported to be high (Rubin 1988). However, even in such structured, programmatically focused environments, departures from the desired norm of full compliance are widespread (West & Bazemore, 1988). Moreover, evaluation research has shown that ad hoc or routine criminal court restitution efforts are likely to lead to even more pronounced departures (Schneider P., Griffith, & Wilson, 1983; Schneider, A., & Schneider, P., 1984).
EXPLAINING AND REDUCING DEPARTURES FROM A RESTITUTION NORM
Measuring and reporting the extent to which restitution is and, more important, is not being imposed and enforced in criminal cases will obviously bring into stark relief the frequency, size, and location of departures from the norm presumed in commentaries and legislation already discussed. Rational assessment and planning of options for reducing such departures, and debate over alternative compensatory mechanisms for victims in cases where restitution is infeasible, however, requires a second database, consisting of those factors/reasons to which variations in the decisions to require restitution can most forcefully be attributed. Loosely adapting principles of statistical decision theory, the task of explaining and responding to impediments to the realization of a restitutive norm may be helpfully structured by conceptualizing those factors within the three basic criteria for rational decisionmaking - factors limiting the decisionmaker's choice whether or not to require restitution; factors limiting the availability of information necessary to reach a decision; and factors having to do with the goal or set of goals to be achieved (Gottfredson & Gottfredson, 1980).
Most of the legislative and programmatic activity in recent years has been aimed at increasing the use of restitution by addressing the first two sets of factors; first by statutorily, and in some instances, constitutionally, reinforcing and expanding the authority of key decisionmakers at all stages of the process, from pretrial diversion to parole, to impose and enforce restitution; and, second by providing staffing and procedural mechanisms to furnish decisionmakers with the necessary information to fix liability, assess quantum, and determine the offender's resources and competing obligations in order to judge ability to pay. On both fronts, impediments to more complete use of restitution remain extensive.
First, without further definitional clarity and regulation through statute or judicial rules, different loss investigators and different judges will continue to hold inconsistent views of the meaning of restitution, and to resolve liability, quantum, and ability to pay issues according to low visibility, idiosyncratic personal and/or agency policies. Second, although criminal courts have been given wide statutory discretion to require offenders to pay restitution - in some cases, for example, approximating the full range of damages available in a civil proceeding - the fact remains that vast numbers of offenses are never even cleared by arrest, so that even the possibility of officially sanctioned restitution is automatically foreclosed (Harland, 1981).
Among cases that are prosecuted, confusion and disparity of opinion and practice continue to be widespread within and between jurisdictions about the authority to require restitution in general damages, pain and suffering, for victims not specified in the formal conviction charge(s) (e.g., victims of plea-bargained offenses, or persons injured in accidents for which the offender is charged with drunk driving or leaving the scene), and for insurers, family members, and other third parties who may have sustained emotional or pecuniary loss as a result of the defendant's criminal activities. Statutes containing such broad "result of criminal activities" language (e.g., Oregon Rev. Stat. s.137.103(4), 1977), open the possibility of requiring criminal courts to grapple with difficult issues of remoteness and proximate cause that, except for the occasional murder case, have been more familiar in tort actions for personal injury. And, although the prevailing view in legislation and case law has been that the offender's liability to victims and to insurers is sufficiently established in all but a minority of complex cases (e.g., fraud and auto-accident cases) by conviction, plea or plea negotiation admissions, whether liability in criminal courts can properly be fixed to other third parties or for charges that are dismissed or on which the defendant is acquitted, remains far less clear.
Justification for the narrower interpretation of victims' recovery rights in the criminal courts has not been based on philosophical argument. Rather, it has rested almost exclusively upon practical concerns about the inadequacy of the criminal process to fix liability and/or quantum in all but the most straightforward cases. Such arguments are problematic, however, in several respects. Legislative and judicial rule-making powers are available to institute necessary procedural modifications, such as providing for a separate restitution hearing and even a jury to try facts, ascertain the amount and value of property, and/or assess damages in contested cases. And if limiting the use of criminal restitution is deemed acceptable or even desirable because criminal tribunals are not as well suited to the task as their civil counterparts, the crime victim's dilemma is indeed acute. A major characteristic of much of the recent advocacy of criminal restitution has been its base in the more general victims' rights efforts (McGillis, 1985), and conclusions that the civil courts are themselves a demonstrably slow, expensive and ineffective avenue of redress for the vast majority of crime victims. Consequently, the victim's interest has been simultaneously elevated and diminished by the following syllogism:
* Civil courts have not been a meaningful avenue of recovery for the vast majority of crime victims; therefore:
* It is more practical to handle their claims to restitution as part of the criminal prosecution; but:
* Where it is inconvenient for the criminal courts to handle restitution, it should be left to the civil courts; however:
* Civil courts have not been a meaningful avenue of recovery for the vast majority of crime victims; therefore:
* The claims of crime victims that cannot be handled conveniently within existing criminal procedures are unlikely to be met at all.
Uncertainty over authority to impose restitution is matched and in many instances exceeded when decisions about enforcement must be made. Fundamental questions persist concerning the relationship between confinement for non-payment of restitution and imprisonment for debt; the propriety of using the criminal process to coerce offenders to work in order to meet restitution obligations; the power to revoke release on pretrial diversion, probation or parole and/or to extend state enforcement control in order to compel payment from offenders who cannot or will not comply with a restitution order within the time limits of traditional criminal supervision; distinctions between enforcement under contempt and probation revocation proceedings; the applicability of garnishment, forfeiture/ seizure of assets, liens, and other civil execution mechanisms, as well as their implications for offender's ability to declare bankruptcy; and the relative authority and responsibility of the courts and probation, jail, prison and parole officials in cases in which payment potential is reduced or suspended for periods during which the offender is incarcerated. When questions are raised about information deficiencies confronting decision makers seeking to impose and enforce restitution, impediments cluster around the three tasks of fixing liability for the alleged harms, assessing the quantum of damages, and establishing the enforcement timetable and the offender's resources and obligations that collectively determine ability to pay. By far the major factor seized upon by legislators and victims' advocates to explain the failure of criminal courts to require restitution has been the lack of reliable and timely loss information available to judges and other relevant decision makers. Research has shown that improving such information can lead to dramatic increases in the use of restitution (Harland, 1982a), and the use of victim impact statements and the spread of formal restitution programs in court and corrections agencies has undoubtedly increased awareness of victim losses at different points in the process. Questions persist, however, about the reliability and validity of such information, and about the appropriate procedural protections that should be afforded to defendants to allow meaningful objection to victims' claims in the inherently coercive setting of a criminal prosecution, sentencing or parole hearing, or revocation proceeding. As indicated earlier, questions also must continue to be asked about gaps that persist to the extent that specialized programs are not in place, or presentence reports or victim impact statements are not ordered or are inadequate in their treatment of victim losses and offender resources, whether because of time and workload constraints, reluctance due to perceptions of professional role conflicts (e.g., probation officers not wishing to be seen as "debt collectors"), simple laziness, or whatever.
Assuming that considerable strides have been and may continue to be made in reducing impediments to restitution attributable to lack of choice or information available to individual decision-makers, residual variation in its use must then be explored in relation to potentially far less tractable and even less discernible conflicts between restitutive objectives and other dominant goals and values that drive their decisions. Perhaps as important, similar goal conflicts at the level of policy, as opposed to individual case decision making, will undoubtedly play a role, together with simple inertia, in explaining delays and reluctance in expanding choice and information options in the first place.3 At both the policy and individual case level, however, further progress toward promoting fuller use of restitution will require clearer answers than have emerged to date about justifications for requiring restitution as part of a criminal disposition at all, and a candid appraisal of their relative importance when compared to other decision goals.
After more than a decade of research and program development activity, for example, the U.S. Justice Department, through its RESTTA program (1988), continues to encourage jurisdictions to adopt what it is marketing as the "powerful option" of restitution. If one probes beneath this general exhortation to ask "powerful in what way?," the answers are far from being readily apparent. Indeed, on most of the dimensions on which criminal justice reforms are traditionally evaluated, restitution might appear to be anything but powerful.
As we have seen, its power as a mechanism for compensating victims is extremely attenuated due to low clearance rates, especially in property offenses for which restitution might otherwise be most plausible. Even in jurisdictions where decision-makers might be given broad authority and procedural and information resources to impose and enforce restitution in the minority of cases in which an offender is apprehended, impediments to victim recovery will persist to the extent that their commitment to that objective is in conflict with and outweighed by other decision goals. Research in the United States (Harland 1982a) and in Britain (Tarling & Softley, 1976) illustrates that variation in the use of restitution in criminal courts may be explained in significant part by the importance that different judges attach to it. Judges have objected to being cast in the role of "debt collector" for the victim, and prominent restitution commentators have lamented the less-than-central role that they feel restitution plays in the ideology of probation (Hudson et al., 1980).
For many practitioners in the criminal process, the convenience for victims of pursuing their claims to restitution through criminal vs. civil channels may be an acceptable rationale for doing so; but the convenience of practioners is itself a "powerful" and sensitive counterforce. Probation officers have long objected to the "burden" or "pain in the ass" that restitution can be (Cohen, 1944; Chesney, 1976), interfering with work on more important problems faced by their clients (Hudson etal., 1980). Judges have voicedsimilar reservations, and even very victim-oriented legislation such as the VWPA has been interpreted to excuse judges from considering restitution if to do so would be "too complicated and time consuming" (U.S. v. Bengimina, W. Mo. Dist. Ct. 11-7-88). In general, the specificity and precision that linking harm and restitution requires, stands in stark conflict with the more routinely broad discretion and lack of precision and articulated reasoning that characterizes the way in which judges are currently used to connect crime-punishment decisions.
Even if restitution is not a very powerful victim compensation tool in practice, practitioners might nevertheless be tempted to embrace it because it is a politically powerful tool, in a system beset with public image problems, to be seen to espouse victim causes, with all their attendant public popularity. If winning popular support for the system is a rationale for using the criminal process to compensate victims, however, questions arise again as to the likely fate of restitution when it conflicts with other powerful items on the public popularity agenda. How, for example, are individual decision makers and policy makers to rank public support for victims against the omnipresent mandate to get tough on crime, if imprisoning more offenders means destroying or deferring for long periods whatever earning capability they may have had to repay their victims? How is the same conflict to be resolved in probation, where competition for finances and staffing may force decisions between compensating victims through restitution programming and getting tougher on offenders through electronic monitoring, community service, or some other form of intensified punishment in the community? Similar conflicts must be faced with respect to other platforms thought to muster popular support. How is the public aversion to "coddling criminals" to be reconciled with the need to invest in offender-employment and alternatives to incarceration programs that would allow offenders to work to repay their victims? And how are demands for system efficiency and speedy processing to be squared with the potentially disruptive impact of the liability, quantum, and enforcement determinations that concern for restitution adds to the already congested criminal and correctional process?
Compensating victims, or the political value of at least professing to care about holding offenders accountable for doing so, does not make restitution a powerful option, to the extent that it is outweighed as a decision goal by demands for accountability to and protection of society. Thorvaldson (1987) is one of the more ardent contenders that societal interests are strongest, and Hudson (1984) is equally adamant that, "While the victim interest should receive consideration in criminal legal proceedings, the public interest must dominate." Restitution advocates could feel more sanguine, therefore, if restitution could be argued to be itself a powerful crime control tool. With the exception of highly publicized but very ambiguous findings in juvenile research (Schneider, 1986), however, there is little to suggest that restitution has an effect on recidivism, at least in the desired direction.4 A recently conducted review of the evidence for the Justice Department concluded that data are not available to assess restitution's role in deterrence, and that evidence regarding impact on offender recidivism is also not currently available (McGillis, 1985). A more recent review of research led to a similar conclusion, prompting its author to observe that, "Because the public safety benefits of restitution are currently unclear, it is much easier for victims to once again be forgotten" (Castellano, 1988).
Despite increasingly heightened rhetoric among victims' rights advocates that restitution should be a sort of presumptive norm in criminal cases, measurement of the extent of departures from that norm at both the imposition and enforcement stages of the process remains woefully inadequate. If a planning/reform baseline of data is to be generated, from which to begin to identify the correlates and explanation of such departures, victim rights groups might do much better by insisting on attention to such information deficiencies instead of focusing on more politically dramatic, but practically insignificant gestures such as declaring constitutional rights that have little or no prospect of becoming reality or of making a significant difference in improving the fate of victims in the criminal justice system (Walker, 1988).
Advocates of restitution have made much of the virtue of holding offenders "accountable" for their wrongs via restitution (Schneider, 1985), but not nearly enough emphasis has been placed on the need to hold the system accountable for documenting and explaining its failure to do so. If we are earnestly to take stock of the status of restitution in today's justice system, and its potential for the future, and if the Council of Europe's challenge to abolish impediments which prevent it from being generally realized (see page 128) is to be taken seriously, we must first have the data with which to isolate the most important obstacles so that they may be removed, or so that alternative provisions for uncompensated victims can be assessed. In the long run, if restitution is to be considered powerful in any meaningful way, it may depend ultimately on its ability to advance dialogue, recognition, and resolution of value conflicts that currently confound the pursuit of compensatory justice in a punitive system.
1 Similar provision is made in the California Constitution Art. 1 s. 28b, and in some state criminal codes predating the federal legislation. See Harland 1982a:98 n.150.
2 Galaway (1988) has recently acknowledged the conceptual confusion inherent in his early formulation of community service as a form of restitution. Although encouraging RESTTA and others to discontinue "the unfortunate practice of merging these two very distinct and different ideas" (1988), however, it is arguable that his continued insistence that community service be classified as a "restorative sanction" (1988), rather than distinguish it more clearly as simply another addition to the state's punitive arsenal, leaves things almost as conceptually addled as they were before.
3 The need to distinguish clearly between policy and case decisions as a step toward more rational decision making in criminal justice is discussed in Gottfredson and Gottfredson (1980).
4 In a recent Supreme Court case, B earden v. Georgia, the Court expressed concern that restitution in certain circumstances "may have the perverse effect of inducing the probationer to use illegal means to acquire funds to pay ... " 461 U.S. 660, 670-71 (1983).
Abel, C. F., & Marsh, R. H. (1984). Punishment and restitution: A restitutionary approachto crime and the criminal. Westport, CT: Greenwood Press.
American Bar Association. (1983). Guidelines for treatment of victims and witnesses in the criminal justice system. Washington, DC: Author.
Austin, J., & Krisberg, B. (1982). The unmet promise of alternatives to incarceration. Crime and Delinquency, 28 (3), 374-409.
Avery, P. W., & Weiner, W. P. (1982). Restitution as an alternative to imprisonment-A Michigan response. Detroit College of Law Review, 45-68.
Barnett, R. (1977). Paradigms of criminal justice. Ethics, 87, 279-301.
Barnett, R., & Hagel, J. (Eds.) (1977). Assessing the criminal: Restitution, retribution, and the legal process. Cambridge, MA: Ballinger.
Casson, J. W. (1983). Restitution: An economically and socially desirable approach to sentencing. New England Journal on Crime and Civil Confinement, 9, 349-85.
Castellano, T. C. (1988). Assessing restitution's impact on recidivism: A review of the evaluative research. Paper presented at 4th World Congress of Victimology, Italy.
Chesney, S. (1976). The assessment of restitution in the Minnesota probation services. St. Paul, Minnesota: Department of Corrections.
Christie, N. (1978). Conflicts as property. British Journal of Criminology, 17,1-5.
Cohen, I. E. (1944). The integration of restitution in the probation services. Journal of Criminal Law, Criminology, and Police Science, 34,315-23.
Colson, C., & Benson, D. (1980). Restitution as an alternative to imprisonment. Detroit College of Law Review, 2, 523-35.
Comment. (1984). Restitution for crime victims: The California legislature responds to proposition 8. Southwestern University Law Review, 14, 745-76.
Comment. (1985). Victim reparation programs: Learning from experience. Brigham Young Law Review, 513-35.
Comment. (1985a). Victim compensation and restitution: Legislative alternatives. Land and Water Law Review, 20, 681-709.
Comment. (1987). Reparation and restitution: Louisiana's response to the victims' rights movement. Loyola Law Review, 33,393-418.
Council of Europe. (1985). The position of the victim in the framework of criminal law andprocedure. Strasbourg: European Committee on Crime Problems.
Davis, R. C. (1987). Crime victims: Learning how to help them. NIJ Reports No. 207, May-June. Washington, DC: National Institute of Justice, United States Department of Justice.
Galaway, B. (1977). The use of restitution. Crime and Delinquency, 23, 57-67.
Galaway, B. (1988). Restitution as innovation or unfilled promise. Federal Probation, 52, 3-14.
Gottfredson,M.R., &GottfTedson,D.(l98Q).Decisionmakingincriminaljustice:Towardthe rational exercise of discretion. Cambridge, MA: Ballinger.
Harland, A. T. (1978). Compensating the victims of crime. Criminal Law Bulletin, 14, 203-24.
Harland, A. T. (1981). Restitution to victims of personal and household crimes. Washington, DC: United States Department of Justice, Bureau of Justice Statistics VAD-9.
Harland, A. T. (1982). Monetary remedies for the victims of crime: Assessing the role of the criminal courts. University of California Los Angeles Law Review, 39 (1), 51-126.
Harland, A. T. (1982a). The decision to Impose restitution in criminal court: An analysis of law and practice. Ann Arbor, MI: University Microfilms.
Harland, A. T. (1983). One hundred years of restitution: An international Review and Prospectus for Research. Victlmology, 5,190-203.
Harland, A. T., & Rosen, C. J. (1988). Intensive supervision, probation and sentencing philosophy. Federal Probation, 51 (4), 33-42.
Hudson, J., Galaway, B., & Novack, S. (1980). National assessment of adult restitution programs: Final report. Duluth, MN: University of Minnesota School of Social Development.
Hudson, J. (1984). The crime victim and the criminal justice system: Time for a change. Pepper dine Law Review, 11, 23-35.
Klein, A. R. (1988). Alternative sentencing: A practitioner's guide. Cincinnati: Anderson Publishing Co.
McDonald, D. C. (1986). Punishment without walls: Community service sentences In New York City. New Brunswick, NJ: Rutgers University Press.
McGillis, D. (1986). Crime victim restitution: An analysis of approaches. Washington, DC: United States Department of Justice. National Institute of Justice.
McLeod, M. (1986). Victim participation at sentencing. Criminal Law Bulletin, 22, 501-17.
National District Attorneys Association (1986). A prosecutor's guide to victim witness assistance - how to set up aprogram inyour office. Alexandria, VA: Victim Witness Coordination Program.
Note. (1983). Criminal law - power of court to impose particular kinds of punishment - trial court had power to order defendant to make restitution to survivors of auto accident and compensate them for their injuries. North Dakota Law Review, 59 (3), 495-504.
Note. (1984). Restitution in the criminal process: Procedures for fixing the offender's liability. Yale Law Journal, 93, 505-22.
Note. (1984a) The constitutionality of the victims' restitution provisions of the Victim and Witness Protection Act. Virginia Law Review. 1059-81.
Note. (1984b). Where offenders pay for their crimes: Victim restitution and its constitutionality. Notre Dame Law Review, 59, 685-716.
Note. (1984c). Congress opens aPandora's box -The restitution provisions of the Victim and Witness Protection Act of 1982.11. Fordham Law Review, 52 (4), 507-73.
Note. (1984d). Victim restitution in the criminal process: A procedural analysis. Harvard Law Review, 97, 932-46.
Note. (1984e). Victim impact statements and restitution: Making the punishment fit the victim. Brooklyn Law Review, 301-38
Note. (1985). Punitive damages for crime victims: New possibilities for recovery in Indiana. Indiana Law Review, 18, 655-684.
Note. (1986). Crime and punishment: The propriety and effect of South Dakota's victim restitution legislation. South Dakota Law Review^!, 783-799.
Note. (1987). Court-ordered criminal restitution in Washington. Washington Law Review, 357-72.
Note. (1987a). Criminal restitution as a limited opportunity. New England Journal on Criminal and Civil Confinement, 13, 243-67.
President's Task Force on Victims of Crime. (1982). FinalReport. United States Department of Justice. Washington, DC: United States Government Printing Office.
RESTTA(1988, May). Second Annual Conferenceon Juvenile Restitution (conference announcement). United States Department of Justice. Washington, DC: Officeof Juvenile Justice and Delinquency Prevention. (May 22-26).
Rubin, H. T. (1988). Fulfilling juvenile restitution requirements in community correctional programs. Federal Probation, 52, 32-42.
Schafer, S. (1970). Compensation and restitution to victims of crime. New Jersey: Patterson Smith
Schneider, A. L., & Schneider, P. R. (1984). A comparison of programmatic and ad hoc restitution in juvenile courts. Justice Quarterly. 1, 529^47.
Schneider, A. L. (1985). Guide to juvenile restitution. Washington, DC: United States Department of Justice. Office of Juvenile Justice and Delinquency Prevention.
Schneider, A. L. (1986). Restitution and recidivism rates of juvenile offenders: Results from four experimental studies. Criminology. 24,533-52.
Schneider, P. R., Schneider, A. L., Griffith, W. R., & Wilson, M.J. (1983). Juvenile restitution.Twoyear report of the national evaluations: Executive summary. Washington, DC: United States Department of Justice. Office of Juvenile Justice and Delinquency Prevention.
Stark, J. H., & Goldstein, H. W. (1985). The rights of crime victims. New York: American Civil Liberties Union.
Tarling, R., & Softley, P. (1976). Compensation orders in the Crown Court. Criminal Law Review. 422-31.
Thorvaldson, A. S. (1986). Compensable criminal harms in Canada: More than the crumbs for victims. Unpublished paper. British Columbia Police Commission, Vancouver, British Columbia, Canada.
Thorvaldson, A. S. (1987). Restitution by offenders in Canada - some legislative issues. Canadian Journal of Criminology. 29, 1-16.
United Nations General Assembly. (1985). Declaration of Basic Principles of Justice for 1985 Victims of Crime and Abuse of Power. Resolution 40/34 November. (Reprinted in Police Studies 10 , 105-8.)
United States Department of Justice. (1983). Statement of Recommended Judicial Practices. Adopted by the National Conference of the Judiciary on the Rights of Victims of Crime. Washington, DC: National Institute of Justice.
Van den Haag, E. (1975). Punishing criminals. New York: Basic Books.
VanNess, D. W. (1986). Crime and its victims. Illinois: Impact Books, Intervariety Press.
Walker, S. (1988). Sense and sensation about crime: A policy guide (2nd ed.). California: Brooks/Cole.
Warner, J. S., & Burke, V. (1987). National directory of juvenile restitutions programs. Washington, DC: United States Department of Justice. Office of Juvenile Justice and Delinquency Prevention.
West, B. R., & B azemore, G. (1988). Conflict and change in a state correctional system. Pacific Institute for Research and Evaluation, Walnut Creek, California. (Paper presented at the American Society of Criminology Meeting, Chicago, November.)
Worth, D. (1987). VORP: A Look at the Past and Future. VORP Network News 5 (1),1,8.
Alan T. Harland
Cathryn J. Rosen
Department of Criminal Justice
Offprints. Requests for offprints should be addressed to A. T. Harland, Department of Criminal Justice, Temple University, Philadelphia, PA 19122.…
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Publication information: Article title: Impediments to the Recovery of Restitution by Crime Victims. Contributors: Harland, Alan T. - Author, Rosen, Cathryn J. - Author. Journal title: Violence and Victims. Volume: 5. Issue: 2 Publication date: January 1, 1990. Page number: 127+. © Springer Publishing Company 2009. Provided by ProQuest LLC. All Rights Reserved.
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