NCJ Number
97035
Journal
Fordham Law Review Volume: 52 Issue: 4 Dated: (March 1984) Pages: 507-573
Date Published
1984
Length
67 pages
Annotation
Unless Congress acts to resolve the problems associated with the restitution provisions of the Federal Victim and Witness Protection Act of 1982 (VWPA), the VWPA and criminal restitution in general cannot compensate victims without infringing upon defendants' constitutional rights, and victims will not receive compensation sufficient to cover their losses.
Abstract
Under the VWPA, judges must order restitution in each case unless they state the reasons for not so doing. Although the law permits victims to recover certain necessary expenses resulting from the crime -- medical, property loss, and funeral -- it does not indicate who has the burden of proving necessity. Due to plea bargaining, most restitution orders compensate victims for only a small portion of their financial losses. Under the VWPA, the court must consider the defendant's finances before ordering restitution; the offender's economic status influences the remedy more than the victim's injury; and nonviolent property crime victims may have a better chance of receiving compensation than victims of other types of crimes. Limitations of the victim's recovery are the result of the subordination of restitution to more traditional sentencing goals, the limited opportunity to prove even the minimal losses provided for in the act, and inadequate court and probation department monitoring of restitution payments. As a result, Congress in promising victims greater compensation than the system can deliver. Before a defendant is ordered to make restitution, he/she must be given timely notice of the victim's claim and an opportunity to challenge the facts supporting it, the two basic elements of due process. To provide meaningful prior notice of the victim's claim, the restitution report should be disclosed well in advance of the sentencing hearing, but this is often not done. Further, under the present VWPA, a defendant's notice may also be unreliable and incomplete. Also, the sentencing hearing may be inherently too coercive to provide the defendant with a meaningful opportunity to be heard on issues related to restitution. The VWPA should be amendeed to address these due process obstacles. A total of 403 notes are listed.