What Goes Around, Comes Around
By Andrew Dósa, Criminal Defense Attorney in Alameda County California. Originally printed in 2007 and reprinted with permission from Crime, Justice and America magazine
The law is clear. Restitution is imposed when a defendant is convicted of a crime. It is good for a victim. It is supposed to be good for a defendant.
What Is Restitution?
The idea is simple. Restitution restores or “repairs” a victim. You cannot undo the past, but you can pay the victim for the damages suffered.
Why is restitution required?
Restitution was understood as community justice. Virtually every ancient legal system recognized restitution. The Hebrew Bible, the Old Testament, spoke of “an eye for an eye.” This was not vengeance. It meant you gave back to somebody to cover the loss you caused. You repairing something or restoring somebody.
In California, restitution is to rehabilitate the defendant. It may seem like punishment, since fines, like restitution, are added to a sentence. Fines are punishment. Restitution is not.
We have all suffered injustice from someone’s bad conduct. Do you know someone who was a victim? Injured in a car accident? Falsely accused? Or left broke by someone who stole something? It makes sense for the responsible party to repay the victim. Should a victim be restored? Of course.
Why is paying restitution good for a defendant? A defendant might fully understand how his actions harmed somebody. If he has to pay for the damages he caused, he might learn the lesson. Paying restitution is like walking in the victim’s shoes.
Who Is A Victim?
Anyone, a business or individual, who suffers an economic or non-economic loss from a crime, is a victim. Penal Code §1202.4(k)(2).
What Is Included Or Excluded?
Just about any loss can be included. Medical bills, stolen or damaged property, child support, lost items, lost income, lost employee time, and psychotherapy bills can be part of a restitution order, the damages can be economic or non-economic. A victim under Penal Code §288 (a sex crime) suffering psychological harm and receiving counseling has a non-economic loss. Penal Code §1202.4(f)(3)(F).
A victim can try to collect his losses. Reasonable expenses, like investigation and litigation costs from a civil action, can be recoverable. The lawsuit must be based on the same facts as the crime.
Attorney’s fees, if reasonable and actual, are subject to restitution. Penal Code §1202.4(f)(3)(H). The court will exclude excessive fees. Contingency fees, based on a percentage of the recovery, must be based on actual attorney work performed.
Interest at 10% per year can be imposed, from the date of loss or sentencing. A defendant becomes a private bank, giving this strong rate of return on the amount of the order. Penal Code §1202.4(f)(3)(G).
Most damages reasonably related to the crime will be restitution. But sanity does apply. A victim hurt in a drunk driver-caused collision would not satisfy the court by claiming she needed psychotherapy because she had dreams a giant beer can was chasing her.
There is no restitution if a crime is not charged. There is no restitution (or fines) on charges dropped, unless there is a “Harvey” waiver as part of the deal.
A government entity must be a direct victim to get restitution. A government entity providing services by employees “carrying out their assigned tasks,” cannot recover those costs. For example, investigators for the State Board of Equalization examine potential failures to pay taxes or fees. Their salary and costs are not restitution. There is also no restitution for the costs of prosecution.
What If There Are Two Or More Defendants?
Each co-defendant is considered jointly and severally liable and must pay the entire amount. If a co-defendant makes a payment, everybody gets the credit. But, as you can guess, it’s also possible the co-defendant was the guy who talked his friends into their troubles. You cannot expect him to be reliable–unless he faces revocation of probation. Then, he may be “forced” to be good.
Conclusion
Restitution is a fact of life. A misdemeanor or felony conviction does not matter. You have to pay for the harm you caused. Think about it. If you are the victim, you would agree. The person who caused the grief should pay for it. It is simple justice.
So you have a choice. Try to pick good friends and stay away from trouble or commit crimes with responsible people who will be committed to pay down the restitution.
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