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Where Offenders Pay for Their Crimes - Victim Restitution and Its Constitutionality

NCJ Number
Notre Dame Law Review Volume: 59 Issue: 3 Dated: (1984) Pages: 685-716
T M Kelly
Date Published
32 pages
An analysis of the 1982 Victim and Witness Protection Act, which provided that convicted offenders pay restitution to their victims, concludes that the constitutionality of the restitution provisions hould be upheld, despite a decision by a U.S. District Court that these provisions are unconstitutional.
In United States v. Welden, the District Court for the Northern District of Alabama held the restitution provisions unconstitutional as violations of the convicted person's seventh amendment right to a jury trial of the restitution issue. The court also held the law violative of the due process and equal protection clauses of the 5th and 14th amendments. Restitution has a long history. The 1982 law aims to aid victims without infringing on offenders' constitutional rights. The Welden court made sweeping statements; however, the bases are suspect and the government has appealed the decision. The court focused on the section allowing enforcement of restitution orders in the same manner as civil judgments and concluded that the law turns a restitution order into a civil judgment. It concluded that defendents at sentencing required the substantive and procedural rights guaranteed in a Federal civil suit -procedure, discovery, cross-examination, and others. However, Federal law prior to the 1982 act allowed enforcement of penalties in a manner like that of civil judgments. A sentence does not thereby become a civil judgment. The restitution order is a sentencing option. The law's restitution provisions must be given a fair chance to accomplish their goal of addressing the needs of victims and witnesses. Footnotes are supplied.