Over the last ten years or so, the legislature has changed the statutes relating to restitution. Restitution refers to a criminal defendant’s obligation to pay the victim for the economic harm caused by the crime. Restitution was once intended to be primarily a part of the punishment, and the judge had the discretion to impose reduced restitution, or no restitution. Now, restitution is intended to compensate the victim, and the court is required to impose all the victim’s financial costs as restitution.
I think that’s a bad policy, because restitution awards can easily be more than the defendant will ever be able to pay. And bankruptcy is not available for restitution, leading to the possibility that the defendant will be saddled with tremendous debt for life, and the victim will never be paid. Criminal convictions can already make it hard for a convicted criminal to rejoin society; if the defendant cannot get a job, or find a place to live, or get student loans, then how will he or she (usually he) become a law-abiding, productive citizen? But it is understandable to decide that, since someone will have to pay for those damages, it makes more sense to make the defendant pay rather than the victim, or even an insurance company or hospital.
But, even if the victim is generally entitled to full restitution, ‘full’ restitution should mean no more than what the victim could win by suing the defendant. The civil justice system has all sorts of rules about how lawsuits work. For example, if the plaintiff is partly at fault, the amount the defendant owes is reduced accordingly. If there are multiple defendants, there are all sorts of rules about how to allocate fault between them. If the plaintiff’s expenses are paid by insurance, then the affect of the insurance payments on the amount the plaintiff can recover is controlled by the complex ‘collateral source’ rule. All of those rules are based on deliberate legislative choice, and they have changed over time to address problems and reflect changing values.
The restitution system should not give a windfall to the victim. Of course the defendant should be punished, but that’s not primarily accomplished through restitution. So, if the victim was partly at fault, the restitution award should be reduced. The insurance company should not be able to collect from the criminal defendant; insurance is in the business of covering such risks. And the defendant should receive a jury trial, just as he or she (still probably he) would if the victim brought an ordinary civil lawsuit. Some of these issues are pending before the Oregon Supreme Court right now, but really the problem is that there are many different laws on this topic, some criminal and some civil, and they do not fit well together. So, the problem probably needs to be addressed in the legislature.
