According to a series of articles published in the Star-Advertiser in June 2011, Hawaii had approximately 6,000 prisoners, 1,800 parolees and 20,000 people on probation or other court-ordered supervision who collectively owed around $25.5 million in restitution as of June 30, 2010. Prisoners and parolees were responsible for $15 million of that amount, of which at least $800,000 has been collected – though an “antiquated” computer management system has prevented officials from tracking the actual collection rate.
Restitution is based on a victim’s losses, but the amount an offender is ordered to pay depends on his or her financial resources and ability to make payments, which can be as little as $10 a month. Because ex-offenders are often unemployed and have few assets, however, even that small amount may go unpaid. And while probation officers have the authority to revoke probation for non-payment of restitution, such sanctions are rarely imposed.
Rather, probation officials tend to work with probationers to help them complete drug or anger management programs, find jobs, make progress in their rehabilitative efforts and become productive citizens. A major public safety goal is to help offenders reintegrate into society without committing future crimes, and that goal supersedes restitution payments. Additionally, if probationers are incarcerated for failing to pay restitution, they still would be unable to pay while sitting in prison or jail.
Prisoners who owe restitution have 10 percent of their wages collected by the Hawaii Department of Public Safety. As prison wages are just 25 cents per hour, that does not amount to much. Legislation signed into law on June 21, 2012 (SB 2776) will increase the percentage collected for restitution payments to 25 percent “of the total of all moneys earned, new deposits, and credits to the inmate’s individual account.” For parolees, typically 10 to 20 percent of their wages are collected by parole officers for restitution payments.
Stakeholders involved in the restitution issue fall into three general groups: 1) victim advocates, 2) those concerned with offender reintegration and 3) those in charge of overseeing collection efforts. A fourth group – the offenders who owe restitution – typically have no voice in the matter.
To victim advocates, the criminal justice system is not placing enough emphasis on justice for victims. Pamela Ferguson-Brey, executive director of the Crime Victim Compensation Commission, said the system should be “more victim-driven.”
“There’s not enough concern about the impact of the crime, the financial, physical and emotional impact on the victim, and how we are going to make sure they become whole again,” she stated.
The majority of victims have not received full restitution; according to the Crime Victim Compensation Commission, only 22% of the prisoners and parolees the Commission has monitored since 2003 have paid the full amount of restitution owed.
Deputy public defender Susan Arnett has a different perspective on the restitution issue. She noted that her office’s clients are often indigent and unable to find employment due to the stigma of their criminal convictions.
“I honestly don’t think the problem is people out there with a significant ability to pay who aren’t paying,” she said. In her view, the idea that the courts should be functioning as a collection agency working on behalf of victims, without taking into account the larger problem of ex-offenders having difficulty finding jobs, is “a little too simplistic.”
As mentioned above, probation officials seek a middle ground, trying to balance the goal of reintegrating offenders into the community with the goal of collecting court-ordered restitution. Probation officials have noted that by finding employers willing to hire ex-prisoners, both goals can be achieved.
On the administrative side, the inability of Hawaii’s existing computer management system to generate accurate statistical reports makes it nearly impossible to assess the success or failure of restitution collection efforts. According to Susan Howley, public policy director of the National Center for Victims of Crime, Hawaii, like other states, needs to do a better job of monitoring restitution.
“Until you start tracking what’s outstanding, it’s hard to get agencies to focus their attention on the problem, and see the scope of the problem,” Howley observed. “The judge’s sentence, the recognition that the defendant should pay, is often disregarded with no consequences, and that causes crime victims to lose faith in the criminal justice system.”
Ferguson-Brey agreed, stating, “Many victims feel betrayed.” At the same time, though, she acknowledged that very few offenders have adequate assets at their disposal to pay the restitution they owe.
Responding to a 1998 state audit that was critical of the restitution collection process, Hawaii’s judiciary established the position of victims assistance coordinator to address the concerns of victims. Noreen Kishimoto, who has occupied that position for around a decade, estimates that she receives 200 to 300 calls a year from victims, many of whom are frustrated by nonpayment of restitution.
Kishimoto’s role, however, is limited. She follows up on complaints about restitution with calls to probation officers, who in turn contact the offenders. She also sends out 500-600 delinquency notices each year directly to offenders when their payments are 120 days overdue. Roughly one-third of those who receive the notices eventually comply, she said.
When victims question why they are not receiving higher amounts of restitution, or why the payments decrease, all Kishimoto can do is explain that the payments are based on an offender’s ability to pay, which fluctuates.
Victims can also turn to the Crime Victim Compensation Commission for monetary compensation. Established in 1967, the Commission awards from $600,000 to more than $1 million annually to victims of violent crime.
Civil lawsuits are another option for crime victims seeking compensation. While it’s relatively easy under Hawaii state law to get a civil judgment for the amount of outstanding restitution, enforcing the judgment is an entirely different matter. In fact it’s extremely difficult because attorneys are rarely willing to take such cases; the amount of restitution is usually very small, thus many lawyers feel it’s not worth their time and effort.
Plus there’s the fact that most offenders have few assets or income to satisfy a civil judgment – which goes back to the need for offenders to receive resources and services to help them obtain stable employment. Indeed, if victims’ advocates truly want to ensure that victims receive the restitution they are owed, then they should support programs that reintegrate ex-prisoners into the community and help them find jobs.
Sources: Star-Advertiser, www.capitol.hawaii.gov
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