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 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.
  
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  The local courts are willing to order restitution, and the agency has an efficient system for distributing payments to victims.
  
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  Victim Advocates are employed within the agency.
  
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  All employees receive mandatory training on victims’ issues.
  
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  Probation officers receive training on fee collection procedures.
  
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  A program component actively attempts to locate “lost” victims.
  
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  There is interagency coordination of efforts around victims’ issues.
  
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  Agency and staff participate in victim-related events and organizations at the local, State, and national levels.
  
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  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 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 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


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 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 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:

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  Training in collection techniques;
  

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  Models of programs that have been successful with collecting payments and interagency communication;
  
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  Follow-up to failures to pay;
  
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  Effective mediums to increase the collection of restitution;
  
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  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.

Case Management Procedures

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:

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   Gathering information from victims regarding the impact of the crime and their specific monetary losses;
   

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   Investigating the offender’s financial resources and ability to pay restitution;
   

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   At times, mediating victim and offender issues; and
   

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   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 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 regarding collection of information from victims about their losses.

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.

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.

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

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 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.

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 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).

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