What Is Criminal Restitution

I. IntroductionRestitution imposed as part of a criminal sentence has become a core component of criminal punishment. Both the manner in which courts impose restitution and the implications of failing to pay criminal restitution illustrate restitution's increasingly punitive character. Take the following three examples:First, a defendant is convicted of wire fraud and sentenced to serve a period of time in prison. As part of the sentence, the judge also orders the defendant to pay $40,000 in restitution to those he defrauded. The defendant completes his prison term and all other court-ordered obligations but is unable to earn the money to pay the restitution. Because of the unpaid restitution, the state deems the criminal sentence incomplete and continues to prohibit the defendant from voting.1Second, a janitorial supervisor at the post office in downtown Fargo, North Dakota, takes undeliverable BMG Columbia House CDs and DVDs from the post office trash and sells them. The disks were discarded as part of an agreement between BMG and the postal service, as it was less costly for BMG to produce replacement disks than to pay for the return of the undeliverable disks. After being charged in federal court with felony mail theft, the defendant pleads guilty to a misdemeanor charge and is ordered to pay restitution to BMG in the amount of his sales, even though BMG has suffered no financial loss.2 3Third, a police officer responds to a call and attempts to arrest the suspect at the scene. The suspect flees in his car. The officer radios for assistance. Another officer, on duty but at home, sets out to help catch the fleeing suspect. On her way to assist the first officer, the second officer is involved in a single car accident that completely destroys her patrol car. At sentencing for eluding the first officer, the defendant is ordered to pay $22,509 in restitution to the police department to cover the costs of the second officer's patrol vehicle, even though the defendant was not responsible for her accident.3Each of these cases illustrates how criminal restitution has become part of the larger retributive objective of the American criminal justice system. In each instance, the court issued an order as part of a criminal case that creates a legally binding obligation between the defendant and the state. Legislatures create-and courts impose-this legal obligation, in part, to convey the moral condemnation associated with criminal punishment. These cases reveal how the practical effects of criminal restitution are no different from the practical effects of a criminal fine, an undisputable form of criminal punishment. They also exemplify scenarios that require criminal defendants to pay restitution even when the victim has suffered no tangible loss, or the loss is only indirectly related to the defendant's criminal action. Finally, these examples show how criminal restitution is rarely used to disgorge a defendant's unlawful gain, but more often is calculated to compensate a victim's loss, often resulting in a benefit previously unknown to the victim.Although it has become a regular part of a criminal defendant's sentencing, courts do not afford criminal restitution any of the constitutional checks they normally provide punishment. In fact, many courts disavow the idea that criminal restitution is an instrument for punishment, instead characterizing restitution as solely compensatory. The result is consistent imposition of a form of criminal punishment without the constitutional protections the Sixth and Eighth Amendments afford defendants.4Restitution has long been an available criminal remedy in the United States,5 but courts only have imposed criminal restitution in a primarily condemnatory manner over the past decade. Rooted in the vigorous victims' rights movement of the 1980s, legislators encouraged restitution's currently accepted presence in criminal sentencing hearings, which corresponded with society's progressively vengeful approach to criminal defendants and punishment. …