LEGAL AND OPERATIONAL ISSUES IN THE IMPLEMENTATION OF RESTITUTION WITHIN THE CRIMINAL JUSTICE SYSTEM (FROM RESTITUTION IN CRIMINAL JUSTICE, 1977, BY JOE HUDSON AND BURT GALAWAY - SEE NCJ-41838)

• NCJ Number: 47996
• Author(s): H EDELHERTZ
• Date Published: 1977
• Length: 13 pages
• Grant Number(s): NI-99-0055
• Sponsoring Agency: US Dept of Justice; US Dept of Justice NIJ Pub
• Corporate Author: Lexington Books
• Publication Format: Document
• Language: English
• Country: United States of America

Annotation

OPERATIONAL AND LEGAL QUESTIONS ARE CONSIDERED AGAINST THE BACKGROUND OF THE RELATION BETWEEN RESTITUTION GOALS AND STAGES OF THE CRIMINAL JUSTICE SYSTEM WHERE RESTITUTION IS IMPOSED.

Abstract

PROGRAM OBJECTIVES MUST BE ESTABLISHED FOR ANY RESTITUTION SCHEME. EMPHASIS GIVEN TO THE EXTENT OF VICTIM HARM OR LOSS IS NECESSARILY SUBORDINATED TO OFFENDER CONSIDERATIONS BECAUSE OF THE LIMITED CAPACITY OF MOST OFFENDERS TO COMPENSATE THEIR VICTIMS ADEQUATELY. VICTIM INTERESTS CAN BE SERVED BETTER BY VICTIM COMPENSATION PROGRAMS THAT RELY ON STATE RESOURCES THAN BY THOSE WHICH RELY ON OFFENDERS. THE POLITICAL IMPETUS FOR RESTITUTION PROGRAMS IS VICTIM-ORIENTED, WHILE PROGRAMS THAT ARE ACTUALLY ESTABLISHED INVARIABLY FOCUS ON THE CORRECTION OR REHABILITATION OF OFFENDERS. INSTEAD OF ASCERTAINING PROGRAM BENEFITS TO VICTIMS, PROGRAM EVALUATORS PRIMARILY ASSESS OUTCOMES IN TERMS OF CORRECTIONAL OBJECTIVES. A DISTINCTION IS MADE BETWEEN PRIVATELY AND OFFICIALLY ADMINISTERED RESTITUTION PROGRAMS AND BETWEEN FORMAL AND INFORMAL RESTITUTION PROCEEDINGS. AT THE POLICE LEVEL, INFORMAL RESTITUTION IS FREQUENTLY A STANDARD PROCEDURE, PARTICULARLY IN THE CASE OF JUVENILES. RESTITUTION MAY ALSO OCCUR INFORMALLY AFTER ARREST AND ARRAIGNMENT BUT PRIOR TO THE FILING OF CRIMINAL CHARGES. IT CAN BE IMPLEMENTED IN CONJUNCTION WITH INCARCERATION, FOR EXAMPLE, THROUGH THE ALLOCATION OF PRISON WAGES TO VICTIMS. CENTRAL TO RESTITUTION PROGRAMS IS THE QUESTION OF WHETHER OFFENDERS CAN BE DEPRIVED OF THEIR LIBERTY OR EQUAL OPPORTUNITY FOR A PROBATION SENTENCE BECAUSE THEY WILL NOT OR CANNOT MAKE RESTITUTION TO VICTIMS. DUE PROCESS AND EQUAL PROTECTION ISSUES ARE LIKELY TO BE RAISED WHEN RESTITUTION IS REQUIRED AS A CONDITION OF PROBATION OR WHEN PROBATION IS SOUGHT TO BE REVOKED FOR AN OFFENDER'S FAILURE TO MEET HIS OR HER RESTITUTION OBLIGATION. RESTITUTION PROGRAMS APPEAR TO BE OFFENDER-ORIENTED; BECAUSE PROGRAM GOALS ARE ALMOST ENTIRELY CORRECTIONAL, THEIR SCOPE AND EFFECTIVENESS ARE INFLUENCED STRONGLY BY THE NATURE AND SCOPE OF REMEDIES AVAILABLE TO BENEFIT VICTIMS. THE RESTITUTION REMEDY LOSES MUCH OF ITS PRACTICICALITY WHERE THE NATURE OF THE CRIME MAKES IT LIKELY THAT THERE WILL BE PRISON SENTENCE RATHER THAN PROBATION. SINCE THE AIM OF FORMAL RESTITUTION PROGRAMS IS TO CORRECT AND REHABILITATE OFFENDERS, THE EXISTENCE OF IMPLEMENTATION MECHANISMS WILL LARGELY DETERMINE WHICH AND HOW MANY CASES ARE REFERRED. A RESTITUTION PROGRAM IN NO WAY LIMITS THE RIGHTS OF VICTIMS TO PURSUE CIVIL REMEDIES AGAINST OFFENDERS. NOTES ARE INCLUDED. (DEP)