Exacting punishment is a difficult process and it has ever been thus. Ancient law discussed the misunderstood "eye for an eye" retributive justice which, scholars explain, was not the actual eye removal, but rather the limit of the punishment; for harming one's eye, the penalty shall be the value no greater than the harm to the offender's eye. It was monetary and value based rather than literal. The notion of criminal restitution draws on this ancient doctrine for its validity.
In Massachusetts, while criminal restitution enjoys large judicial support, its purpose is utterly unclear. It seems not to have a home: whether to punish or reform, to rehabilitate the offender or to compensate for loss. Criminal restitution must not exceed the actual cost of repair or damage and the offender is entitled to a hearing where such proof is presented; ability to pay must be factored in to the equation and so it is unlike its civil restitution counterpart. The system is so ill designed that payments, when they can be made, are submitted to the probation department which then has no regulated accounting process by which it must account for the funds and release them to victims save keeping a receipt therefore.
Criminal restitution is "punitive" in nature. Unlike compensatory damages, it is, therefore, subject to taxation by the recipient. Not only does this mean it fails in its purpose of making whole, but there is no industry watchdog to ensure that the state receives its proper tax through this haphazard system. If not taxed and treated more like civil compensation to make the victim whole, then query its place in the echelons of criminal justice, a state-driven punitive entity. Despite its chameleon-like existence, criminal restitution is decidedly disciplinary enough so that if an individual owing restitution misses a payment, s/he is subject to probation violation proceedings.
That is, failing to pay restitution can lead to incarceration. This conflicts with the concept of ordered liberty. An inability or lack of desire to pay a private debt may have consequences, but jail should not be one of them. Civil action by the creditor is a possibility, and most private debts can be dismissed in bankruptcy proceedings if necessary. But, criminal restitution essentially establishes a debt under the auspices of criminal courts which have the ability to jail people...for failing to pay a debt...to a private party...whose counsel was provided by the state...and which is not eligible for relief from the bankruptcy courts. This just seems wrong; it even raises concerns about the use of criminal courts, payment for prosecutors and equal protection since civil litigants will not lose liberty of they cannot pay.
If the goal includes reform and rehabilitation, then it must not depend on the size of the loss to the victim. The aspiration is to teach the offender that s/he is part of a greater society, a society that values all members and wants participation from all members. This view of restitution has resonance; our actions affect others and those others are part of our greater world. When we harm them, we harm ourselves and therefore, to make the victim whole and to restore our community to stasis, we must heal the wounds we created. In the eye for an eye comparison, this represents that the value of the eye is the maximum penalty, but that a lesser penalty can satisfy justice.
If the goal is punitive and designed to compensate for loss, putting aside the civil court system designed for that purpose, criminal restitution becomes a sword. The aspiration is to demonstrate that providing funds to the victim evidences penance. This view of restitution has resonance, too; our actions have consequences not only for those we harm but to us in our daily lives. When we harm people, we too will face financial harm until such time as we compensate the loss. In the eye for an eye comparison, this represents the equitable scale where the maximum penalty is the only just penalty.
Regardless of the view of criminal restitution, or even when it may be appropriate and for what types of losses, unlike its civil counterpart, ability to pay is always a factor for consideration. This is true because due process of law demands it but also because criminal courts are busy doling out punishment for crimes; they are not collection agencies. Given that the vast majority of criminal defendants are indigent, many with mental health or addiction problems, ability to pay takes on great force in the process from the initial award to the concept of probation violation for failing to pay restitution. We rid ourselves of debtors prisons by federal law in 1833. But, in a recent case mimicking a morality play, ability to pay stands front and center in a starring role.
In Commonwealth v. Avram A. , an 11 year old boy was found delinquent for "tagging" - expressing his creativity with spray paint on other people's property. He admitted to sufficient facts and agreed to a hearing to determine restitution and his ability to pay. It is doubtful he anticipated the $1313.78 sum determined by the juvenile court judge; there is no record of how the court decided the child's ability to pay the restitution. He was placed on a type of probation called a continuance without a finding; a fancy way of saying if he completed his probation, the charge would be dismissed. A year later, having failed to pay, he was surrendered on a probation violation, found in violation and his probation was extended until his 16th birthday with the requirement to pay the restitution.
Although acknowledging that the child was 12, and subject to child labor laws prohibiting work, the Appeals Court upheld the violation and the sentence extension reasoning, in part, that as the child got older he would become more and more capable of paying the debt. Indeed, at his age he was old enough to get a paper route...for newspapers that are losing readership at an alarming rate...and which routes have long been replaced by adults with cars to cover the broader area required for the few folks who like ink on their hands...in support of a sadly dying industry.
In the penance/punishment model of restitution, the boy needs to understand that his actions have consequences. But, doesn't he? He got caught which is often enough to scare a young child. Reforms on child labor put in place a century ago finally took hold during the Great Depression because adults needed the jobs that children formerly held - a phenomenon as true today as then. Thus, even if America were not in a jobless recovery, he is prohibited by law from working for money except under limited conditions and the court knew that when it initially sentenced him. Under principles of due process of law, cruel or unusual punishment, double jeopardy, and the reformatory nature of juvenile justice, by what fiat can that sentence be enhanced for four additional years so that he can grow into a place where he might earn over $1000?
Whatever the lessons of criminal restitution, they cannot be the beating of the tell-tale heart echoing forever no matter what one does. The boy was 11 at the time of his offense. 11 year olds cannot even see The Hobbit without parental permission. And it is reasonable for a court to hold him under terms of probation until he is 16 for a debt to a private party?
In the reform/rehabilitation model of restitution, the boy needs to feel responsible for his actions. But, doesn't he? He got caught which is often enough to scare a young child. He has not otherwise violated his probation. He cannot legally earn the amount of money needed to compensate for his actions, but he has taken steps to reform his behavior. Thus, rather than violating him on his probation, the court should have accepted that the penalty was too high; he lacked the ability to pay but the other aspects of restitution and probation had been accomplished. Indeed, built into the criminal restitution model is the opportunity for review as to ability to pay.
Both models have the potential to leave the victims without compensation. But, compensation to victims is not part of the criminal justice model anymore: that whole eye for an eye idea faded when criminal and civil law grew into their own branches. In a reform movement several years ago, the idea of victims rights developed. Pursuant thereto, a fund was established under G.L. c. 258 as part of a larger framework for victims of crime. Understanding that certain expenses might accompany criminal acts, each district attorney is obliged to establish services and programs to assist crime victims in the system. Convicted offenders must pay in to the victim/witness fund; adults must pay $90 and juveniles 14 and over are not required to pay more than $45. There is no required amount for juveniles under 14, probably due to an implied inability to pay. G.L. c. 258B sec. 8. The maximum amount allowed for compensating a crime victim is $25,000. G.L. c. 258C sec. 3. Surely, once the court realized its error in requiring a child to pay an amount he could not legally earn in a year - or realistically during the jurisdiction of the court's authority over him - the court should have instructed the prosecutor to relieve the victims by way of the fund.
The legislature has deemed that juveniles of this age presumptively cannot pay $45, so can a court hold an individual in perpetual restraint of liberty for failing to pay $1300? The case of this young boy is troubling on a number of levels.
As a practical matter, criminal restitution, an extremely popular and widespread punishment, is unworkable and contrary to the criminal justice system. Payments to crime victims should come directly from the victim/witness fund and not from the offender. The offender may be charged fines to the state, so long as they are not excessive as per the Eighth Amendment And Art. 26. The offender may lose his liberty as a result of the criminal acts. But, it is a waste of public dollars for the government to use valuable resources in order to collect a private debt. The system is not designed for that purpose and the costs far outweigh the benefits. If restitution is desired, the case should be sent for mediation with a legitimate plan for compensation or acceptance of responsibility satisfactory to the victim without the threat of a loss of liberty for failing to pay. If punishment is desired, then the state has plenty of tools in its shed to implement. The real questions that must be asked - and if possible, answered - what are we trying to do? And, what methods best help us achieve that goal? Regardless of the answers, criminal restitution will never satisfy.