What Is Criminal Restitution?

• Author: Cortney E. Lollar
• Position: Assistant Professor, University of Kentucky College of Law
• Pages: 93-154

What Is Criminal Restitution? Cortney E. Lollar  ABSTRACT: A new form of restitution has become a core aspect of criminal punishment. Courts now order defendants to compensate victims for an increasingly broad category of losses, including emotional and psychological losses and losses for which the defendant was not found guilty. Criminal restitution therefore moves far beyond its traditional purpose of disgorging a defendant’s ill-gotten gains. Instead, restitution has become a mechanism of imposing additional punishment. Courts, however, have failed to recognize the punitive nature of restitution and thus enter restitution orders without regard to the constitutional protections that normally attach to criminal proceedings. This Article deploys a novel definition of punishment to situate restitution alongside other forms of punishment. As with other forms of punishment, courts impose restitution subsequent to a criminal allegation, pursuant to a statute motivated by morally condemnatory intent, and resulting in a substantial deprivation or obligation. Because restitution has become a form of punishment, this Article argues that judges should recognize criminal restitution for what it is—victim compensation imposed at the state’s request as condemnation for a moral wrong—and extend to defendants in restitution proceedings all the constitutional protections they enjoy in other criminal proceedings. This means submitting restitution to a jury for determination pursuant to the Sixth Amendment, and subjecting it to the excessive fines analysis of the Eighth Amendment.  Assistant Professor, University of Kentucky College of Law. I am grateful to Joshua Barnette, Scott Bauries, William Berry, Jennifer Bird-Pollan, Jim Donovan, Josh Douglas, Keith Findley, Brian Frye, Nicole Huberfeld, Peter Joy, Andrew Kull, Wayne Logan, Michael Pinard, Melynda Price, Laura Rosenbury, Collin Schueler, and Sarah Welling for their thoughtful comments, insights and suggestions. Thank you to Mae Quinn for planting the seed for this Article, to Franklin Runge for helping locate difficult-to-find sources, and to the editors of the Iowa Law Review —particularly Nick De La Cruz and MacKenzie Benson—for their excellent editorial work. This Article benefitted greatly from participants in the Clinical Law Review Clinical Writers’ Workshop, Washington University School of Law Junior Faculty Workshop, SEALS New Scholar Workshop, and feedback from the faculties at the University of Cincinnati College of Law and the University of Kentucky College of Law. 94 IOWA LAW REVIEW [Vol. 100:93 I. INTRODUCTION ............................................................................... 94 II. THE RESTITUTION REVOLUTION .................................................... 99 A. C RIMINAL R ESTITUTION ’ S S HIFT FROM D ISGORGEMENT TO P UNISHMENT .................................................................... 101 B. P UNISHMENT D EFINED ............................................................. 105 1. Deprivations and Obligations ....................................... 106 2. Presence in a Criminal Proceeding with Moral Judgment Attached ....................................................... 109 3. What Distinguishes Punishment from a Civil Remedy .......................................................................... 111 a. Legislative Intent .................................................. 113 b. Retributive Application .......................................... 116 c. Punitive Effects .......................................................... 120 III. CRIMINAL RESTITUTION AS PUNISHMENT ..................................... 122 A. T HE P UNITIVE E FFECTS OF F AILING TO P AY R ESTITUTION ......... 123 B. C RIMINAL R ESTITUTION AS P UNISHMENT IN A PPLICATION ........ 130 1. Restitution for Acquitted and Unproven Conduct ..... 130 2. Criminal Restitution for Secondary and Indirect Harms ............................................................................. 133 3. Restitution Required Even When No Actual Loss to Victim ............................................................................. 138 4. “Reimbursement” of State Investigations and Prosecutions .................................................................. 142 IV. CRIMINAL RESTITUTION SHOULD BE AFFORDED CONSTITUTIONAL PROTECTIONS ............................................................................... 148 A. T HE S IXTH A MENDMENT A PPLIES TO C RIMINAL R ESTITUTION .. 149 B. T HE E XCESSIVE F INES C LAUSE A PPLIES TO C RIMINAL R ESTITUTION .......................................................................... 152 V. CONCLUSION ................................................................................ 154 I. INTRODUCTION Restitution 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 2014] WHAT IS CRIMINAL RESTITUTION? 95 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. 1 Second, 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 Third, 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. 3 Each 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 1. Johnson v. Bredesen, 624 F.3d 742, 746 (6th Cir. 2010) (citing Tenn. Code Ann. § 40-29-202(b)–(c) (2014)). 2. United States v. Chalupnik, 514 F.3d 748, 750 (8th Cir. 2008) (explaining that the restitution order was vacated on appeal due to the government’s failure to put forth evidence of actual loss). 3. Dubois v. People, 211 P.3d 41, 42 (Colo. 2009) (en banc). 96 IOWA LAW REVIEW [Vol. 100:93 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. 4 Restitution 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’ 4. The Sixth Amendment affords the jury trial right to any finding that increases a defendant’s criminal punishment. U.S. CONST. amend. VI. The Eighth Amendment limits the financial penalties that can be imposed on a defendant as punishment in a criminal case. U.S. CONST. amend. VIII. Generally, these rights have not been, but should be, afforded to criminal restitution findings as well. 5. Starting in 1925, federal judges were authorized to order restitution only as a condition of probation. Woody R. Clermont, It’s Never Too Late to Make Amends: Two Wrongs Don’t Protect a Victim’s Right to Restitution , 35 NOVA L. REV. 363, 373 (2011); see also, e.g. , United States v. Boswell, 605 F.2d 171, 175 (5th Cir. 1979); United States v. Wilson, 469 F.2d 368, 370 (2d Cir. 1972); United States v. Taylor, 321 F.2d 339, 341–42 (4th Cir. 1963); cf. Tate v. Short, 401 U.S. 395, 397–99 (1971) (explaining that it is a violation of the Equal Protection Clause to convert the statutory...