Restitution to the Victims

Restitution involves the court, as part of a sentence in a criminal case, ordering a defendant to compensate the victim for losses suffered as a result of the crime. All states have laws providing that convicted defendants pay restitution to their victims. Public policy favors imposing restitution as part of a sentence to force the offender to answer directly for the consequences of the crime.

Courts are required to consider restitution as part of any sentence, including plea bargains, even when the victim doesn’t request it. When a judge doesn’t order restitution or orders only partial restitution, many states require that judge to provide a justification on the record.

Restitution, compensation and damages are the mechanisms devised by the Courts and the Legislature to empower the Compensatory jurisprudence. Restitution is a court ordered payment from a convicted offender, whereas, compensation is a government program that pays the victim where the compensation is not fully available or recoverable from the perpetrator.

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In restitution, the offender pays to the victim for the loss and damage done to him and also provides him services. The victim may be a specific individual or it may be a community. The concept of restitution is to make the offender responsible and amend himself. Instead of sentencing the offender to the prison term, it is better if there is reparation to the victim by the offender and the offender is also reformed. Imprisonment instead of bringing any reform in the criminal may further motivate him to criminal activities after his release.

The impact of association with hardened criminals in jail may also make him more irresponsible. Further, mere imprisonment does not bring any separation to the victim. Restitution is also of two kinds-punitive restoration in which the offender has to pay the fine or the punitive amount and the pure restitution where the offender has to pay the amount for the actual damage to the victim. By the restitution, the offender is made accountable to the victim and the offender develops a feeling of accountability if he further does any wrong to another.

The offender has to  perform the work useful to the community which is called as a ‘community service’. If the crime is of minor nature and the offender is not dangerous, it is better to provide service to the community by the offender than to serve jail term. The victim is provided protection by the community for leading the normal life and for giving him moral strength to rehabilitate. The victim may also be provided the vocational training for rehabilitations.

Courts must take certain legal elements into consideration in determining the amount of restitution ordered in a particular case. These include:

  • losses suffered by the victim
  • the seriousness and gravity of the offense and the circumstances of its commission
  • the economic gain derived by the offender
  • the financial burden placed on the victim, the government, and others injured as a result of the crime
  • the current financial resources of the defendant, and
  • the defendant’s future ability to pay.

Although some states require judges to order defendants to pay restitution regardless of their ability to pay, as a general rule, ability to pay is an element to be considered in determining the amount of restitution and the schedule of payments.

The court can always consider a defendant’s future financial prospects in assessing restitution requirements. For example, if Tom Trustfund is currently penniless but set to come into a large windfall on his 30th birthday, a judge would likely order a schedule of increasing payments in restitution amounts in a sentence for financial fraud. Similarly, the court would likely order minimal restitution from Penny Pauper, who has no resources, no education, and no future prospects.

The court can also consider any settlement in deciding whether to make a defendant pay restitution and what amount of restitution to order. In that situation, the court is likely to order less, if any, restitution to prevent the victim from receiving a windfall. However, as restitution is part and parcel of the criminal justice system, a civil settlement agreement typically cannot prevent the court from ordering restitution in a criminal case.

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