Monitoring and enforcement of restitution orders
Liability for Juveniles Performing Unpaid Work Restitution
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- Incentives for Payment and Penalties for Nonpayment
- Saving on Restitution Fees.
- Possible Early Discharge from Probation
- Incentives in Custody Facilities.
- Penalties for Nonpayment of Restitution
- Dakota County Community Corrections Incentives
- Alexandria, Virginia Circuit Court
- Community Juvenile Arbitration Program Lexington, SC
- CROSS-JURISDICTIONAL MONITORING AND ENFORCEMENT
Liability for Juveniles Performing Unpaid Work Restitution Many juveniles perform unpaid work for the victim(s) or the community pursuant to the Court’s order that restitution be made. When a juvenile will be making restitution in this way, the juvenile and the parent(s) or guardian(s) sign a written contract to that effect. Because the unpaid work is performed pursuant to a Court order and is agreed to in writing by the juvenile and the parent(s) or guardian(s), claims and demands for injury or death of a person performing work restitution are presented to, heard and determined by the legislature. This procedure was established by Minnesota Statute 3.739, as of May 30th, 1979. The restitution program also needs to consider the type of offense the offender has committed and his or her personal characteristics when making job or community service placements. Further, agency policies should address the information about the offender that can be shared with work sites. Restitution Centers. Restitution Centers are a special type of paid work opportunity for offenders, and they are increasingly found in a variety of jurisdictions. They combine a residential living arrangement with supervision and employment opportunities. Placement in a restitution center may occur as a condition of probation, in lieu of incarceration, or as a condition of parole following an offender’s incarceration. Generally, offenders are placed in restitution centers when they owe a significant amount of restitution and/or they are unemployed and there is minimal probability that they will find adequate employment on their own. Lawrence (1989) conducted research on restitution centers in Texas and concluded they were successful and provided a cost-effective diversion from prison. The programs reduced the risk the offender posed to the community and curtailed the high cost of incarceration. Further, the evaluation found a high rate of employment of participant offenders and significant money collected for victim restitution. Most restitution centers set criteria for offender eligibility which may include:
the type of crime committed (e.g., many centers exclude violent offenders, sexual perpetrators, or defendants convicted of drug sales); low level of risk to public safety; reasonable expectation of employability (i.e., mentally and physically able to work); and a minimum financial obligation (e.g., $500 or more). In addition to expecting residents to be fully employed for 40 hours per week, the South Carolina restitution center program also requires offenders to perform 10 hours of community service each week. Besides work-related assistance, the South Carolina Restitution Centers provide or refer residents to other services, including: substance abuse counseling; adult education and literacy programs; life skills education; and transportation to work sites, medical and dental appointments, and other services. Restitution Centers generally have specific policies about management of accounts and how offenders’ earnings are applied to their obligations. The types of expenditures allowed include: restitution payments; child support and alimony; court costs, fines, and fees; daily charges for room and board; transportation expenses; personal savings; purchase of items required for employment (e.g., uniforms, tools); and personal spending. Incentives for Payment and Penalties for Nonpayment A system of graduated incentives and sanctions is appropriate for restitution programs as well as other criminal and juvenile justice interventions. Responding appropriately to offenders’ compliance or noncompliance with restitution orders increases the likelihood they will meet their restitution obligations. Research conducted by the American Bar Association and reported by Smith, Davis, and Hillenbrand (1989) found that closely monitoring offenders as soon as restitution is ordered increases compliance. The study recommends intervening as soon as a delinquency occurs before a pattern of noncompliance is established. Delinquent payments are most likely to occur early in the payment process or by the middle of an offender’s sentence indicating that early and effective responses may successfully interrupt customs of nonpayment (National Victim Center, 1997; Smith, Davis, & Hillenbrand, 1989). A stairstep approach for incentives and sanctions is a good way to conceptualize this process, as shown in Figure 6e, beginning at the lowest level of responses and continuing up the “steps” as offenders either pay or fail to meet their restitution obligations.
Incentives Often, incentives receive minimal attention in the criminal and juvenile justice systems, yet they frequently are more powerful in changing behavior than are sanctions or punishments. Indeed, the “What Works” literature describing effecting interventions with offenders suggests that positive reinforcements should be used four times more often than sanctions (Andrews, et al., 1990). Based on Figure 6e, incentives might be grouped in at least six categories: Verbal incentives (e.g., praise, approval, attention) Written incentives (e.g., written commendations, letters to parents or the court praising the person’s achievements) Privileges (e.g., activities, travel) Material incentives (e.g., financial rewards, gifts) Supervision (e.g., less restrictive supervision from the justice system) Freedom (e.g., increased independence for decision making and activities) The following examples of incentives were mentioned by respondents to the survey. Travel Privileges. The Alexandria, Virginia Probation and Parole agency states in its policies and procedures on collecting, safeguarding, and disbursing client monies that, “payment status shall be a consideration for client privileges, such as travel, etc.” Saving on Restitution Fees. Several programs allow offenders to pay their restitution obligations in installments. However, there is often an added charge for this arrangement. The collection fee is used to offset the costs of processing the payments. When offenders pay their restitution obligations at sentencing or within a given timeframe, these collection fees may be waived, and the offender saves this money. Pretrial Diversion. Several programs allow offenders to be diverted from prosecution and adjudication if they pay restitution and meet other qualifications. Their incentive for successful completion of the program is having charges dropped and not having a juvenile or criminal record. A unique program has been operated by the Community Corrections agency in Jackson County (Medford), Oregon for nearly 20 years. This is usually used in cases of first-time arrests for shoplifting, forgery, and other similar theft offenses. It is presented to offenders as a deferred sentencing alternative to jail or other corrections programs. To complete the Theft Program, the offender must pay a $100 fee, list all thefts he or she has committed in the past three years, and submit to a polygraph to determine the veracity of his or her list. When offenders pass the polygraph examination, the program coordinator sets restitution and a payment schedule so they may pay restitution to all victims within six months. In some cases, the program can be extended another three months to give offenders time to make their payments. The restitution collected by the program is returned to victims (both individuals and businesses) anonymously; confidentiality is an important aspect of the program. A portion of the restitution collected is taken to defray the costs of the program. The offender is granted immunity from prosecution on any thefts he or she confesses to. If the victim of the theft cannot be located, the restitution is donated to a charitable organization of the offender’s choice (J. Rodriquez, personal communication, and program materials). Possible Early Discharge from Probation. In some situations it may be possible to use early discharge from probation as an incentive to encourage offenders to complete all conditions of their probation, including paying restitution. The feasibility of this option depends on several factors, including jurisdictional laws, judicial concurrence, the type of offense, and how realistic it is that an offender can complete all conditions before the end of his or her sentence. Generally, probationers must serve at least a certain portion of their sentence (e.g., half) before early discharge is even considered. Probation officers who use this practice feel offenders often are motivated to complete their conditions to achieve an early discharge. Victims benefit by getting their restitution more quickly. Incentives in Custody Facilities. Incentives for payment of restitution also can be granted to incarcerated offenders. Suggestions include (National Victim Center, 1997): Increased commissary privileges, Visitation privileges, Special menu choices, and Priority enrollment in popular programs sponsored by the prison. Penalties for Nonpayment of Restitution Survey respondents were asked to indicate the responses or sanctions used for nonpayment of restitution by offenders. Their responses are shown in Figures 6f, 6g, and 6h. Interestingly, the most severe sanction – Revocation of Probation/Parole – was reportedly used by the largest percentage of programs, followed in frequency by the mildest sanction – verbal warnings. However, as shown in Figures 6f, 6g, and 6h, there are multiple options for responding to nonpayment of restitution orders. 
A variety of sanctions were described in the survey responses and literature that correspond to the types of graduated approaches mentioned previously. The National Victim Center (1997) recommends allowing victims the opportunity to have input into the type(s) of sanctions imposed for nonpayment. They also mention house arrest and curfews as sanctions besides those presented in the survey responses. In Delaware, courts may hold an offender’s driver’s license as security for fulfillment of restitution orders or other costs. If the offender defaults on payments, the driver’s license is suspended. In Oregon, State law provides that a court may report any default in payment of restitution to the consumer reporting agency. In the State of Washington, the Department of Corrections can extend the offender’s parole term up to ten years after the end of the formal supervision period in order to collect restitution (Godwin & Seymour, 1999). The Dakota County, Minnesota Community Corrections agency has outlined both incentives and sanctions used to encourage offenders to pay restitution. These are listed correspondingly below. Dakota County Community Corrections Incentives Breakdown monthly payments into smaller more manageable increments ($100/months, $25/week, $3/day) Positive praise and reinforcement Assist with money management/consumer credit counseling Maintain individual offender payment records Decrease reporting frequency with full payments Disincentives Monthly billings/delinquent payment notices Institute revenue recapture or wage assignment Require budget review (including cigarettes, cable) Increase reporting frequency Use arrest and detention/probation violation Extend probation term Refer for a civil judgment Further enhancements proposed by the program for both juvenile and adult offenders include: Referring juveniles automatically to work crews if they are more than 30 days delinquent in payment, Placing youth who fail to participate in work crews or earn restitution at a juvenile center, Bridge outstanding juvenile restitution to adult files, File a civil judgment concurrent with delinquent restitution, Implement interest on late payment of restitution, Implement adult work crew and refer all offenders who are delinquent in payment, Remove offender’s driver’s license when payments are delinquent, Violate probation automatically when payments are delinquent, and Disallow out of state transfers when restitution is owed. The Alexandria, Virginia Circuit Court provides information about court costs to offenders. Possible sanctions for nonpayment are listed in Exhibit 6k. Further, the Alexandria, Virginia Probation and Parole Department’s policies and procedures state that accounts delinquent for more than 40 days can be submitted to a collection agent. The agent may “use any available means to collect them as any other civil judgment, including wage and vehicle attachments” (p. 2).
Information About Court Costs If you do not pay your court costs, miss a payment, or do not do community service as allowed by the Judge, any or all of the following is likely to happen: A warrant for your arrest could be issued If you are on probation and/or have a suspended sentence, the court could sentence you to serve the sentence that was suspended The state may take any tax refunds, lottery winnings or other funds owed to you by the Commonwealth The Division of Motor Vehicles will suspend your license ten days after the due date of a missed payment You may be charged with the crime of contempt of court and receive a sentence of up to sixty days and/or a fine of up to $500.00 The Department of Motor Vehicles will revoke your car registration and plates and refuse to issue new ones until costs are paid The state may take action to attach your property or garnish your wages The Judge will remove you from jail programs like work release, weekend service, home electronic monitoring, etc. Anyone on parole can be revoked and returned to prison Exhibit 6l contains a list of possible sanctions used by the Community Juvenile Arbitration Program in Lexington, South Carolina. This program is a diversion program that was described earlier in this document. The sanctions listed in Exhibit 6l might be imposed by a volunteer arbiter for first time offenders as, or in addition to, payment of restitution. The list is displayed here because it contains many options that might be useful in situations where offenders (especially youth) are not paying restitution. Several of the sanctions have an educational, treatment, or developmental enhancement aspect and are not punitive in the usual sense assigned to sanctions. Community Juvenile Arbitration Program Lexington, SC Categories of Sanctions It is strongly urged that when determining sanctions, positive, organized activities such as football, band, cheerleading, etc. not be restricted.
Several programs have devised ways of pressuring offenders into meeting their restitution obligations. Welch (1987) reports that in Toledo, Ohio, youth who fail to show up for work assignments to pay their restitution may be violated and detained overnight. The next day, a workcrew van stops at the detention center to pick up the detained youth. This not only gets the attention of the youngster who was detained, it also puts the other youth in the van on notice that restitution must be paid. The use of checks, and obvious potential for passing bad checks in the process, has led to some innovative practices in some jurisdictions which are not limited to circumstances involving restitution, but can be applied to restitution easily. District Attorneys in Arkansas have been empowered by state law to issue misdemeanor warrants for bad checks amounting to less than $200 and felony misdemeanors for bad checks amounting to more than $200. The Hot Checks programs that have evolved in District Attorney’s offices across the state to assist individuals and businesses in recovering losses incurred by the receipt of bad checks are a form of direct restitution to the victim that can potentially avert the need for formal judicial proceedings. Programs in small rural counties are using newspaper advertisements and the local media to call the public’s attention to the large number of warrants issued each year for bad checks. For example, the District Attorney’s office in Montgomery and Polk Counties in Arkansas takes out a full‑page advertisement in the local newspaper to publish all of the active warrants for bad checks and the amounts owed in the county. According to Teresa Craig at the Montgomery County District Attorney’s Office, “we gave them plenty of warning with newspaper ads and radio announcements that their names are going into the paper. People hate to see their name and their debts published, so many of them come up with the money” (T. Craig, personal communication, October 27, 1999). In October 1998, the publishing of 264 warrants brought in $20,000 of monies owed on bad checks in Montgomery and Polk Counties. As a result of the Hot Check initiative, the District Attorney’s Office is collecting between $100,000 and $125,000 annually. The success of the initiative encouraged the District Attorney’s office to use similar means to collect on restitution orders in default. They published the names of offenders in the districts who failed to make their restitution payments and the amounts they were in default in the county newspapers. Between the two counties, the ads brought in $40,000 and motivated many offenders to come into the office to schedule payment plans. In another effort, Henry Morgan, the Clark County, Arkansas District Attorney offered a month‑long Hot Check Amnesty in August 1999 in an effort to collect old outstanding warrants. To promote the Hot Checks Amnesty and to increase public awareness of the problem, the office issued press releases to the newspapers, public television, and local radio. They distributed bright orange Hot Check Amnesty posters and buttons around the community and to every merchant, and the District Attorney and his staff spent a half‑day in the downtown districts of each of the communities speaking to the people on the street about the importance of paying off bad checks. A grocery store owner for whom the office had previously collected more than $100,000 took out an ad in the newspaper to thank the staff at the Clark County District Attorney’s Office for their efforts. At the end of the month, the office had recorded $20,000 in payments for bad checks. One month later, in anticipation of a newspaper ad that would publish the names and amounts of the remaining 180 active warrants, offenders paid an additional $10,000 (B. Ursery, personal communication, October 26, 1999). Monetary sanctions are another type of penalty often employed as a consequence for nonpayment in an effort to increase the likelihood offenders will meet their restitution obligations. In Maryland, the Division of Parole and Probation charges offenders a two percent collection fee. However, if payments are missed, offenders may be referred to the Central Collection Unit of the State’s Office of Budget and Management where a 17 percent collection fee is charged. Many States allow restitution orders to be converted to civil judgments (as discussed in Chapter 5), and several allow for the extension of probation and/or continuation of the period during which restitution is owed. For example, in the State of Washington, the following extension can occur: When the juvenile reaches the age of 18, or at the conclusion of juvenile court jurisdiction, whichever occurs later, the superior court clerk must docket the remaining balance of the juvenile’s legal financial obligation in the same manner as other judgments for the payment of money. The judgment remains valid and enforceable until ten years from the date of its imposition. The clerk of superior court may seek extension for an additional ten years prior to the expiration of the initial 10-year period (RCW 13.40.145 and RCW 13.40.190(1), RCW 13.40.192 as cited by D. Lee, 1999). Although judges have traditionally been reluctant to revoke probationers due to a failure to pay restitution because of concerns about the constitutionality of such measures, increasingly the courts are showing support for incarcerating offenders who demonstrate a willful failure to pay restitution. In People v. Martinich, 685 N.Y.S.2d 838 (N.Y.Sup.App.Div. Feb. 1999), the defendant was sentenced to five year’s probation and ordered to pay $71,000 in restitution for the crimes of grand larceny and forgery. Subsequently, the defendant failed to make restitution payments on eight separate occasions and the county court scheduled a hearing regarding this nonpayment where the defendant offered to make payment at a reduced monthly rate. The defendant acknowledged the court’s power to revoke his probation, and that is exactly what the court did. Defendant was sentenced to a prison term of two to seven years, with continued payment of restitution. Upon appeal, the appellate court affirmed the district court, rejecting, among other arguments, the defendant’s contention that he was being unconstitutionally imprisoned for his indigence (citing Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221). The court noted its response in similar circumstances, specifically that "having received the benefit of his bargain, defendant should be bound by its terms." (People v. Felman, 141 A.D.2d 889, 890, 529 N.Y.S.2d 400). The appellate court further cited the probation department’s thorough submission of facts regarding the offender’s financial and employment status and affirmed that, with the factual record fully before it, the decision to revoke was squarely within the discretionary power of the district court (Probation and Parole Law Reports, 1999). Another example of judicial revocation took place in Montana where an offender (an attorney), in 1987, was given a suspended sentence and ordered to pay more than one million dollars in restitution to investors whom he had defrauded in a limited partnership scheme. As of October of 1999, he had paid a total of $7,735. In 1992, however, he was brought back to court and his suspended sentence was revoked, resulting in a five-year incarceration (Thackeray, 1999).
CROSS-JURISDICTIONAL MONITORING AND ENFORCEMENT At times, it is necessary or advantageous for offenders to move from a county or state where their crime was committed and where they are supervised and held responsible for paying restitution to another jurisdiction. Many issues must be considered when the justice system authorizes such a transfer, and a particularly important concern is how to ensure that victims will receive full restitution for the losses they have incurred. Both intra- and interstate transfers may affect monitoring and enforcement of restitution. Among the survey respondents, few addressed this issue, and those that did treated it quite differently. Therefore, it is difficult, without evaluative studies, to claim that one approach works better than another. However, it is vital that jurisdictions develop policies so there is no question about responsibilities for monitoring, enforcement, collection, and disbursement of restitution funds.
Policies regarding intrastate transfers of offenders owing restitution vary from state to state. In New York, Probation Administrators have developed a policy to recommend the “transfer [of] (all powers and duties) to the receiving Court and its probation authorities.” When approved by the court, this allows “the Court of the receiving jurisdiction [to have] all of the powers of the Court of the sending jurisdiction. . .” The policy goes on to state that the “reciprocal agreement to collect restitution funds and distribute them to the designated victims eliminates the need for the sentencing Court to retain powers and duties. In addition, all violations and final dispositions can be conducted in the receiving jurisdiction” (Orders of Intrastate Transfer of Probation Supervision, New York, 1998). The South Carolina Department of Probation, Parole, and Pardon Services has adopted a very similar policy that requires the receiving county to collect and monitor offenders’ restitution payments. Interstate Transfers Interstate transfers of offenders are managed in accordance with the Interstate Compact for Adult Offender Supervision. Contrary to the State policies cited above, the Interstate Compact stipulates that the sending jurisdiction (State) will collect and monitor the offender’s restitution payments. However, a receiving State may be asked to assist in instances where the offender fails to pay. The receiving supervising jurisdiction may check on the offender’s financial status and advise him or her to catch up on payments. General Considerations Whether the sending or receiving jurisdiction monitors and enforces payment of restitution is not as important as having their respective responsibilities clearly outlined and understood by both jurisdictions, the victim, and the offender. The Maryland Division of Parole and Probation Operations Manual contains the following statement about transfers that raises important issues for sending jurisdictions to consider. If an offender with an unpaid balance requests permission to transfer to another state, attempt to collect all monies due in full prior to requesting a transfer. If the balance cannot be paid in full, the offender shall have all payments up to date as agreed to in the payment plan and permission for the transfer must be requested from the court/Parole Commission. If approved for transfer, the case will be handled as any other case being transferred. However, the offender must be reinstructed regarding his/her payment obligation and provided with sufficient envelopes to pay in full. Several key issues are addressed in this paragraph that should be considered for both inter- and intrastate transfers. First, since transfer is usually at the request of and for the advantage of the offender, stipulations that safeguard the victim’s interests are quite appropriate. Maryland’s policy contains three important recommendations that should be considered before a transfer is approved for an offender owing restitution: Stipulate that the offender must pay the balance of any restitution owed before granting the transfer; If that is not feasible, at least ensure the offender is current with restitution payments before granting the transfer; and Before any transfer occurs, provide detailed instructions and necessary materials for the offender to make restitution payments from the new jurisdiction. Several questions should be posed and answered within restitution program policies on inter- and intrastate transfers, including the following: Who will maintain and update information on victims (i.e., the sending or receiving jurisdiction)? How will victims be notified about any changes regarding their case? Which jurisdiction (sending or receiving) will actually disburse funds to the victim (i.e., will the receiving jurisdiction collect and disburse to the victim; will the receiving jurisdiction collect and turn monies over to the sending jurisdiction to disburse, or will the sending jurisdiction both collect and disburse)? To whom will victims address questions or concerns about their restitution payments? In determining procedures regarding cross-jurisdictional disbursement of restitution, those making decisions should ensure that changes made to accommodate an offender’s need or desire to move to another jurisdiction do not inadvertently affect the victim negatively. For example, if the sending jurisdiction has proactive policies for victims (such as ensuring restitution is disbursed quickly upon receipt and making other funds available when offenders default on restitution payments) but the receiving jurisdiction does not have comparable procedures, the victim may be disadvantaged if all disbursement issues are handled by the jurisdiction with less stringent policies. 1 Author: Ann Crowe 2 Through the Interstate Compact for Adult Offender Supervision, if offenders under supervision cross State lines, plans should be in place for their ongoing supervision. Download 1.54 Mb. Share with your friends:
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