Symbolic restitution

12 Repaying Victims

CHAPTER OUTLINE The Costs of Victimizations

Gaining Restitution from Offenders

Back to Basics The Rise, Fall, and Rediscovery of Restitution Divergent Goals, Clashing Philosophies Opportunities to Make Restitution Obstacles Undermining Restitution Restitution in Action

Winning Judgments in Civil Court

The Revival of Interest in Civil Lawsuits The Litigation Process Collecting Damages from Third Parties

Collecting Insurance Reimbursements

Private Crime Insurance Patterns of Loss, Recovery, and Reimbursement Federal Crime Insurance

Recovering Losses through Victim Compensation Programs

The History of Victim Compensation by Governments The Debate over Compensation in the United States How Programs Operate: Similarities and Differences Monitoring and Evaluating Compensation Programs

Confiscating Profits from Notorious Criminals Writing and Rewriting the Law

Summary Key Terms Defined in the Glossary Questions for Discussion and Debate Critical Thinking Questions Suggested Research Projects

LEARNING OBJECTIVES To recognize the many individual and social costs

imposed by criminal activities.

To develop a familiarity with the different ways that injured parties can get reimbursed for their losses.

To understand the various rationales for imposing restitution obligations on offenders.

To become familiar with the arguments in favor of and in opposition to state-run compensation funds.

To recognize the opportunities and drawbacks of civil lawsuits.

To identify the limitations of insurance coverage as a means of recovery.

To appreciate the reasons for favoring and for opposing notoriety-for-profit laws.

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The costs of victimizations cannot be measuredsolely in monetary terms. Mental anguish and physical suffering cannot easily be translated into dollars and cents. Nevertheless, repairing the dam- age to a victim’s financial standing is an achievable goal and a necessary step toward recovery.

Out-of-pocket expenses can be regained in many ways. Making the offender pay is everyone’s first choice, as it embodies the most elemental notion of justice. In criminal court, judges can order con- victs to make restitution, generally as a condition of either probation or parole. Insurance coverage also can be a source of repayment. In some cases, financial aid can be forthcoming from a government-run state compensation fund set up to cover certain crime- related expenses. Note that restitution and compen- sation are alternative methods of repaying losses. Restitution is the responsibility of blameworthy offenders. Compensation comes from blameless third parties, either government-run funds or private insurance companies. In civil court, judges and juries can compel wrongdoers to pay monetary damages. Another possible source of reparations might come in the form of a civil court judgment against a grossly negligent third party, such as a commercial enterprise or a governmental agency that is considered to bear some responsibility for the criminal incident. Finally, in rare instances, victims might be able to deprive offenders of any profits gained from selling a sensa- tionalized “inside story” of their shocking exploits.

This chapter explores all of these means of eco- nomic recovery: court-ordered restitution, lawsuits for damages, third-party civil suits, private insurance policies, government compensation plans, and leg- islation prohibiting criminals from cashing in on their notoriety.

THE COSTS OF VICTIMIZATIONS

The social costs of crime-related expenditures are staggering, according to economists’ estimates. Vic- tims sustain economic losses whenever offenders take cash or valuables; steal, vandalize, or destroy property; and inflict injuries that require medical attention and recuperation that interferes with

work. Theft and fraud bring about the direct trans- fer of wealth from victims to criminals. Murders terminate lives prematurely, resulting in lost earn- ings for devastated family members. Nonfatal wounds trigger huge expenses for medical care— bills from doctors, emergency rooms, hospitals, pharmacies, nursing services, occupational thera- pists, and dentists. The old saying, “It’s only money” might underestimate how even modest losses from a robbery or theft can impose serious hardships for individuals living from paycheck to paycheck, as this case demonstrates:

A knife-wielding robber steals the purse and jewelry of a retired woman scraping by on disability payments. It takes at least six weeks to replace the ID cards and Social Security check in her stolen wallet. In the meantime, she has no cash, no bus pass, and no way to pay for her many prescription drugs, or even dog food for her pet. None of the social service agencies on the list provided by the big city police department offers emergency financial assistance. Finally, she discovers a faith-based charity that is willing to pay her rent and electric bill and give her food vouchers and $50 in cash. “If not for them, I could not have gotten my heart medication, and I’d be going to bed hungry,” she tells a reporter. (Kelley, 2008)

Serious injuries may also inflict emotional suf- fering that requires psychological care for intense feelings of fear, grief, anger, confusion, guilt, and shame. Possible long-term consequences include mental illness and suicide, as well as alcohol and drug abuse. Some may get their lives back in order rather quickly, but others could be haunted by disturbing memories and burdened by phobias and by post-traumatic stress disorder (PTSD) for long periods of time. Overall, the lifetime risk of developing PTSD for violent crime victims is much higher than for the general public. Rates of experiencing episodes of major depression and gen- eralized anxiety are also greater. Furthermore, the effects of the victims’ emotional turmoil are likely to spill over on to family members, close friends, even neighbors. An outbreak of crime can have a

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negative impact on an entire community, fostering a fear of strangers, undermining involvement in activities outside the home, eroding a sense of cohesiveness, and driving out some of the most productive residents (Herman and Waul, 2004).

Even those who are not directly connected to the injured parties may suffer a “psychic toll” from the ever-present fear that permeates a crime-ridden community. The result is that people are willing to pay substantial amounts of money in the form of taxpayer-funded government actions plus private expenditures in their search for greater security and an improved quality of life. Expenses arise from the crime-induced production of goods and services that would not be necessary if illegal activities were not such a grave problem. For exam- ple, the time, money, and resources spent on manufacturing protective devices (locks, surveil- lance cameras, and alarm systems) are crime- induced outlays, as are private security forces and theft insurance. Similarly, local, state, and federal government funds are consumed pursuing “the war on crime,” “the war on drugs,” and the “war on terror.” That translates into huge expenditures for investigating illegal activities by law enforce- ment agencies, and running court and prison sys- tems (including prosecutors’ offices, indigent defense, incarceration, treatment programs, proba- tion, and parole). All of these governmental expen- ditures can be considered to be a net loss of productive resources to society. If the risks to life and health from criminal activity were not so great, these corporate, governmental, taxpayer, and per- sonal expenditures could have been used to meet basic needs and improve living standards for the law-abiding majority (Anderson, 1999).

Some studies that attempt to estimate the costs of crimes focus on what victims lose, but others high- light how much “society” loses when an offender becomes enmeshed in a criminal career. For exam- ple, one group of researchers projected that every murder of an adult (in Pennsylvania in the late 1990s) cost the entire society about $3.5 million. Another group of researchers devised a formula for monetizing a criminal career in order to determine its “external costs” to others over a lifetime, and came

up with even larger estimated societal outlays. For example, each murder inflicted about $4.7 million in victim costs, over $300,000 in justice system expenditures, and nearly $150,000 in offender pro- ductivity losses, for a total cost of over $5 million. Each armed robbery imposed costs of nearly $50,000, and the average burglary inflicted losses of about $5,500 (De Lisi et al., 2010).

GAINING RESTITUTION FROM OFFENDERS

Back to Basics

A renewed interest in restitution developed during the 1970s. Restitution takes place whenever injured parties are repaid by the individuals who are directly responsible for their losses. Offenders return stolen goods to their rightful owners, hand over equiva- lent amounts of money to cover out-of-pocket expenses, or perform direct personal services to those they have harmed. Community service is a type of restitution designed to make amends to society as a whole. Usually it entails offenders working to “right some wrongs,” repairing the damage they are responsible for, cleaning up the mess they made, or laboring in order to benefit some worthy cause or group. Symbolic restitu- tion to substitute victims seems appropriate when the immediate casualties can’t be identified or located, or when the injured parties don’t want to accept the wrongdoers’ aid (Harris, 1979). Crea- tive restitution, an ideal solution, comes about when offenders, on their own initiative, go beyond what the law asks of them or their sentences require, exceed other people’s expectations, and leave their victims better off than they were before the crimes took place (Eglash, 1977).

As a legal philosophy, assigning a high priority to restitution means the financial health of victims will no longer be routinely overlooked, neglected, or sacrificed by a system ostensibly set up to deliver “justice for all.” Criminal acts are more than sym- bolic assaults against abstractions like the social order or public safety.” Offenders shouldn’t be prosecuted solely on behalf of the state or the

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people. They don’t only owe a debt to society. They also have incurred a debt to the flesh- and-blood individuals who suffer economic hard- ships because of illegal activity. Fairness demands that individuals who have been harmed be made whole again by being restored to the financial con- dition they were in before the crime occurred (see Abel and Marsh, 1984).

Usually, wrongs can be righted in a straightfor- ward manner. Adolescent graffiti artists scrub off their spray-painted signatures. Burglars repay cash for the goods they have carted away. Embezzlers return stolen funds to the business they looted. Occasion- ally, client-specific punishments are imposed, tailored to fit the crime, the criminal, and unmet community needs. For example, a drunk driver responsible for a hit-and-run collision performs sev- eral months of unpaid labor in a hospital emergency room to see firsthand the consequences of his kind of recklessness. A teenage purse snatcher who preys on the elderly spends his weekends doing volunteer work at a nursing home. A lawyer caught defrauding his clients avoids disbarment by spending time giving legal advice to indigents unable to pay for it. Such sentences anger those who are convinced that imprisonment is the answer and fervently believe, “If you do the crime, you must do the time.” But imaginative dispositions that substitute restitution and community service for confinement are favored by reformers who want to reduce jail and prison overcrowding, cut the tax burden of incarceration, and shield first-time and minor offenders from the corrupting influences of the inmate subculture (“Fitting Justice?,” 1978; “When Judges Make the Punishment Fit the Crime,” 1978; Seligmann and Maor, 1980).

The Rise, Fall, and Rediscovery of Restitution

The practice of making criminals repay their victims is an ancient one. Spontaneous acts of revenge were typical responses by injured parties and their kin before restitution was invented. Prior to the rise of governments, the writing of laws, and the crea- tion of criminal justice systems, the gut reaction of

people who had been harmed was to seek to “get even” with wrongdoers by injuring them physically in counterattacks and by taking back things of value. But as wealth accumulated and primitive societies established rules of conduct, the tradition of retaliatory violence gave way to negotiation and reparation. For the sake of community harmony and stability, compulsory restitution was institution- alized in ancient societies. Reimbursement practices went beyond the simplistic formula of “an eye for an eye and a tooth for a tooth.” Restitution was intended to satisfy a thirst for vengeance as well as to repay losses. These transactions involving goods and money were designed to encourage lasting set- tlements (composition) between the parties that would head off further strife (Schafer, 1970).

In biblical times, Mosaic law demanded that an assailant repay the person he injured for losses due to a serious wound, and required that a captured thief give back five oxen for every one stolen. The Code of Hammurabi granted a victim as much as 30 times the value of any possessions stolen or damaged. Under Roman law, a thief had to pay the victim dou- ble the value of what he stole if he was caught in the act. If he escaped and was caught later, he owed the victim three times as much as he took. And if he used force to carry out the theft, the captured robber had to repay the injured party four times as much as he stole. Under King Alfred of England in the ninth century, each tooth knocked out of a person’s mouth by an aggressor required a different payment, depending upon its location (Peak, 1986).

In colonial America before the Revolution, criminal acts were handled as private conflicts between individuals. Police departments and public prosecutors did not exist yet. A victim in a city could call upon night watchmen for help, but they might not be on duty, or the offender might flee beyond their jurisdiction. If the injured party sought the aid of a sheriff, he had to pay a fee. If the sheriff located the alleged perpetrator, he would charge extra to serve a warrant against the defendant. When the sus- pect was taken into custody, the complainant had to hire a lawyer to draw up an indictment. Then the complainant either prosecuted the case personally or hired an attorney for an additional fee to handle the

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private prosecution. If the accused was found guilty, the person he harmed could gain substantial benefits. Convicted thieves were required to repay their vic- tims three times as much as they had stolen. Thieves who could not hand over such large amounts were compelled to be servants until their debts were paid off. If the victims wished, they could sell these inden- tured servants for a hefty price, and they had one month in which to find a buyer. After that, victims were responsible for the costs of maintaining the offenders behind bars. If they didn’t pay the fees, the convicts were released (Geis, 1977; Jacob, 1977; McDonald, 1977; and Hillenbrand, 1990).

In the years following the American Revolu- tion, the procedures that the British had set up in the colonies were substantially reorganized. Refor- mers were concerned about the built-in injustices afflicting a system in which only wealthy victims could afford to purchase “justice” by posting rewards and hiring sheriffs, private detectives, bounty hunters, and prosecuting attorneys. Crimes were redefined as acts against the state. Settling individual grievances was no longer regarded as the primary function of court proceedings. To pro- mote equal handling and consistency, local govern- ments hired public prosecutors. State agencies built prison systems to house offenders. A distinction developed within the law between crimes and torts. Crimes were offenses against the public and were prosecuted by the state on behalf of “the people.” Torts were the corresponding wrongful acts that harmed specific persons. Criminals were forced to “pay their debt to society” through fines and periods of confinement. But injured parties who wanted offenders to repay them were shunted away from criminal court and directed to civil court, a separate arena where interpersonal conflicts were resolved through lawsuits (McDonald, 1977).

The modern rediscovery of restitution in the United States began in 1967, when the President’s Commission on Law Enforcement and the Admin- istration of Justice recommended the revival of this old practice that had fallen into disuse. Since the 1970s, opinion polls have indicated widespread pub- lic support for its restoration. A greater reliance on restitution also was endorsed by the American Law

Institute, the American Bar Association, the Ameri- can Correctional Association, the National Advisory Commission on Criminal Justice Standards and Goals, the Supreme Court, the National Association of Attorneys General, the Office for Victims of Crime of the Justice Department, and reformist groups such as the National Moratorium on Prison Construction. The Federal Victim/Witness Protec- tion Act of 1982 removed restrictions that had lim- ited restitution to simply a possible condition of probation within the federal judicial system.

Also in 1982, the President’s Task Force on Vic- tims of Crime noted that it was unfair that people suffering serious injuries had to liquidate their assets, mortgage their homes, make do without adequate health care, or cut back on tuition expenses while criminals escaped financial responsibility for the hard- ships they inflicted. The task force recommended that judges routinely impose restitution or else clearly explain their specific reasons for not doing so. The Violent Crime Control and Law Enforcement Act passed by Congress in 1994 made restitution manda- tory in federal cases of sexual assault or domestic vio- lence. The enactment of the Mandatory Victim Restitution Act of 1996 imposed repayment obliga- tions on all violent offenders in the federal system.The Federal Bureau of Prisons created a payment collec- tion program in the late 1980s that many state correc- tional authorities have copied. The growing use of alternative, creative, or constructive sentences reflects the rediscovery of restitution by judges (McDonald, 1988; Leepson, 1982; Harland, 1983; Herrington, 1986; Galaway, 1992; National Victim Center, 1991b; and Office of Justice Programs, 1997).

In the juvenile justice system, restitution has been ordered more often and for a longer period of time. The oldest existing repayment program for people who have been harmed by delinquents was initiated in Florida in 1945. The earliest community service program was set up in South Dakota in 1965. A Min- nesota program established in 1972 was the first to allow youthful offenders to perform direct services for victims instead of paying them in cash. It also pioneered the use of mediation sessions between the two parties to foster a spirit of reconciliation. Hundreds of juvenile restitution projects were set up during the 1970s and

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1980s (Warner andBurke, 1987; Klein, 1997;Roberts, 1998; and Bradshaw and Umbreit, 1998).

Divergent Goals, Clashing Philosophies

Even though support for restoring restitution to its rightful place in the criminal justice process is grow- ing, its advocates do not agree on priorities and pur- poses. Some advocates have been promoting this ancient practice as an additional form of punish- ment, while others tout it as a better method of rehabilitation. Still other champions of restitution emphasize its beneficial impact on the financial well-being of victims and its potential for resolving interpersonal conflicts. As a result, groups with divergent aims and philosophies are all pushing res- titution, but are pulling at established programs from different directions (see Galaway, 1977; Klein, 1997; and Outlaw and Ruback, 1999).

Restitution as a Means of Repaying Victims Those who advance the idea that restitution is primarily a way of helping victims (see Barnett, 1977; and McDonald, 1978) argue that the punitively oriented criminal justice system offers victims few incentives to get involved. Those who report crimes and cooperate with the police and prosecutors incur additional losses of time and money for their trouble (for example, from missing work while appearing in court). They also run the risk of suffering reprisals fromoffenders. In return they get nothing tangible, only the sense that they have discharged their civic duty by assisting in the apprehension, prosecution, and conviction of a dangerous person—a social obligation that goes largely unappreciated. The only satisfaction the system provides is revenge. But when restitution is incorpo- rated into the criminal justice process, cooperation really pays off.

If the primary goal of restitution is to ensure that victims are repaid, then they should be able to directly negotiate arrangements for the amount of money and a payment schedule. Reimbursement should be as comprehensive as possible. The criminal ought to pay back all stolen cash plus the current replacement value of lost or damaged possessions, outstanding medical bills from crime-related injuries

(including psychological wounds attended to by therapists), wages that were not earned because of absence from work (including sick days or vacation time used during recuperation or while cooperating with the investigation and prosecution), plus crime- related miscellaneous expenses (such as the cost of renting a car to replace one that was stolen or the cost of child care when a parent is testifying in court). Repayment on the installment plan should begin as promptly as possible because victims must foot the entire bill in the interim.

Restitution as aMeans of RehabilitatingOffenders Advocates of restitution as a means of rehabilitation (see Prison Research, 1976; and Keve, 1978) argue that instead of being punished, wrongdoers must be sensitized to the disruption and distress that their illegal actions have caused. By learning about their victims’ plights, they come to realize the injurious consequences of their deeds. By expending effort, sacrificing time and convenience, and performing meaningful tasks, they begin to understand their personal responsibilities and social obligations. By making fiscal atonement or doing community ser- vice, they can feel cleared of guilt, morally redeemed, and reaccepted into the fold. Through their hard work to defray their victims’ losses, offenders can develop a sense of accomplishment and self-respect from their legitimate achievements. They may also gain marketable skills, good work habits (such as punctuality), self-discipline, and valuable on-the-job experience as they earn their way back into the community.

If restitution is to be therapeutic, offenders must perceive their obligations as logical, relevant, just, and fair. They must be convinced to voluntarily shoulder the burden of reimbursement because it is in their own best interest as well as being “the right thing to do.” However, offenders probably will define their best interests as minimizing any penalties for their lawbreaking. This includes minimizing pay- ments to injured parties, even if restitution is offered as a substitute for serving time behind bars. Offenders most likely will underestimate the suffering they have inflicted, while those on the receiving end may tend to overestimate their losses and want to

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extract as much as they can (see McKnight, 1981). The sensibilities of wrongdoers must be taken into account, because their willingness to make amends is the key to the success of this “treatment.”

Restitution as a Means of Reconciling Offenders and Their Victims Some advocates of restitution view the process primarily as a vehicle for reconcilia- tion. After offenders have fully repaid the individuals they hurt, hard feelings can dissipate. Also, reconcili- ation between two parties who share responsibility for breaking the law can be achieved after face- to-face negotiations. In situations without a clearly designated wrongdoer, restitution might be mutual, with each of the disputants reimbursing the other for damages inflicted during their period of hostility. Both parties have to consider the restitution agree- ment to be fair and constructive if a lasting, peaceful settlement is to emerge. (The philosophy and oper- ating principles of restorative justice, which relies heavily on restitution, are discussed in Chapter 13.)