Restitution in Criminal Cases

• Publication year: 2001
• Pages: 125

30 Colo.Law. 125 Colorado Lawyer 2001.

2001, October, Pg. 125. Restitution in Criminal Cases

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125

Vol. 30, No. 10, Pg. 125

The Colorado Lawyer
October 2001
Vol. 30, No. 10 [Page 125]

Specialty Law Columns
Criminal Law Newsletter
Restitution in Criminal Cases
by Robert J. Dieter

Colorado law requires a sentencing court to include consideration of restitution when imposing a sentence or approving a deferred judgment and sentence.1 Imposing restitution on criminal defendants is supported by theories of rehabilitation and deterrence,2 as well as an effort "to make the victim whole" to the extent practicable and "to take the profit out of crime."3 The Colorado legislature first endorsed restitution as an alternative or supplement to traditional criminal sanctions during the 1970s.4 Significant amendments to restitution statutes were made in 1996.5 Now, the enactment of Title 16 Article 18.5 of the Colorado Revised Statutes ("CRS"), which is effective as to restitution orders entered on or after September 1, 2000, makes restitution subject to a more consistent and comprehensive statutory scheme that is (1) centralized in one CRS article and (2) designed to implement more effective and timely assessment and collection of restitution on behalf of crime victims.6

Toward those ends, the Colorado legislature expressed its intention that statutory provisions concerning restitution should be liberally construed in favor of the victims of crime and their immediate families.7 This article summarizes that legislation and highlights some of the issues it raises for criminal practitioners

Restitution to be Addressed
In All Criminal Cases

Unless the sentencing court makes a specific finding that no victim of the offense suffered a pecuniary loss,8 the court is required to order a defendant to make restitution in all cases involving a conviction of a felony, misdemeanor, petty, or misdemeanor traffic offense where a "victim" sustains a pecuniary loss due to a defendant's criminal conduct.9 For purposes of restitution, the term "conviction" means a verdict of guilty, a plea of guilty or nolo contendere, or receiving a deferred judgment and sentence.10 Restitution is required to be part of any sentence to probation11 or incarceration12 and is made a condition of parole.13 Further, defendants who have caused the same pecuniary loss are jointly and severally liable for restitution payments.14

In addition to Title 16, Article 18.5, other statutory provisions afford crime victims the right to restitution.15 Also, certain offenses, such as crimes committed against at-risk adults and at-risk juveniles and sex offenses committed against children, specifically provide for payment of restitution.16 Moreover, crime victims may apply for various victim assistance services through the Victims and Witness Assistance and Law Enforcement Fund,17 and victims of certain types of offenses may be eligible to apply for compensation through the Crime Victim Compensation Fund for emergency needs and for certain out-of-pocket expenses not covered by insurance.18

The "Victim"

In 1996, the Colorado legislature broadened the definition of the term "victim" so that the term included, among others, "any person aggrieved by a defendant."19 This change encompassed not only the immediate and direct victim of the offense, but also the victim's immediate family members, such as a spouse or child.20 Also added to the definition was any victim compensation board that had paid a victim compensation claim, as well as any person or entity that suffered a loss because of a contractual obligation with the victim, such as an insurer.21 This 1996 definition further included a governmental entity that may qualify as a victim to whom restitution is payable such as, for example, the Department of Social Services from which a defendant fraudulently obtains food stamps.22

Under the 2000 legislation, the term "victim" for restitution purposes incorporates elements of the existing law as well as additional categories, and now includes: (1) persons against whom any felony, misdemeanor, petty, or traffic misdemeanor offense has been attempted or committed;23 (2) persons who are harmed by criminal conduct in the course of a scheme, conspiracy, or pattern of criminal behavior;24 (3) persons suffering losses because of a contractual obligation with the victim or an insurer who reimburses the immediate victim of the loss;25 and (4) a victim compensation board that has paid a victim compensation claim.26 The statute excludes any person accountable for the criminal conduct or episode as principal, complicitor, or conspirator.27

There is no requirement in the statute that a person or entity be named as a victim in the charging documents to be eligible to recover restitution, provided that the person or entity is immediately or directly aggrieved by the defendant's criminal act. For example, in one case, a defendant was ordered to pay restitution for injuries sustained by both a husband and wife when the defendant rear-ended their van, even though the wife was the only named victim in the charging document.28

An insurer is entitled to recover as restitution its payments to victims of a defendant's criminal conduct that are paid pursuant to its contractual obligations.29 The defendant is required to pay the full amount of bills paid by an insurance company under its policy with a person injured by the defendant's criminal act, not simply the deductible that the policyholder paid to the company.30 Further, Colorado's Auto Accident Reparation Act,31 which denies insurers the right of recovery of no-fault personal injury protection ("PIP") benefits, does not limit the authority of courts to order a criminal defendant to pay these amounts to the insurer as restitution.32

If a victim is deceased or incapacitated, various specified family members or lawful representatives may recover restitution.33 If the victim cannot be found or declines to accept restitution, or if restitution is unclaimed, the defendant nonetheless must pay restitution to the state and distribute as provided by statute.34

Determining the Victim's
Pecuniary Loss

Prior law spoke of "actual damages sustained" by the victim but did not statutorily define the term "restitution." As discussed below, the new legislation (1) defines the term in an effort to provide direction on what kinds of losses are included, and (2) provides that the amount of restitution that a court may order is equal to the full amount of a victim's "actual pecuniary loss."35 However, the court can approve a lesser amount agreed on by the prosecutor, the victim, and the defendant.36 A significant change is that a court may no longer consider the defendant's inability to pay restitution when establishing the amount to be paid.37 The new legislation establishes that courts may take into consideration the rate at which defendants can pay off restitution and that restitution orders clearly are "lifelong" obligations of defendants to satisfy whether or not the defendants have otherwise completed their sentence.

Restitution...