Thirteen years after a state auditor released a report critical of the Hawaii judiciary's collection efforts, only a small fraction of the millions of dollars in restitution assessed against offenders has been collected, leaving victims of crime upset at what they perceive as a continuing injustice.
Of the state's approximately 7,800 prisoners and parolees, more than 1,100 owe over $15 million in restitution. Of that amount, at least $800,000 has been collected.
On the probation side, about 20,000 probationers owe about $25.5 million, but an "antiquated" computer management system has prevented officials from keeping track of the rate of recovery.
Restitution is based on a victim's losses, but the amount that an offender is ordered to pay depends on his or her ability to make payments. It can be as little as $10 a month. Because ex-offenders often have no job, little money, and no assets, however, even that amount may go unpaid. And while probation officers have the authority under state law to revoke probation for non-payment of restitution, that is rarely imposed as a sanction. Rather, probation officers tend to work with probationers to help them try to complete drug or anger-management programs, find jobs, make progress in their rehabilitative efforts, and generally to become productive citizens. A major public safety goal remains, after all, to help offenders reintegrate into society without committing future crimes.
Those in prison who owe restitution have 10 percent of their wages collected by the Department of Public Safety. Prison wages are just 25 cents an hour, however, so this does not amount to very much.
Those on parole who owe restitution typically have 10 to 20 percent of their wage earnings collected by their parole officers.
While the majority of victims have not gotten full restitution, according to the Crime Victim Compensation Commission, 22 percent of the prisoners and parolees it has monitored since 2003 have in fact paid the full amount of the restitution they owed. Of those, 152 paid restitution in an amount between $1,000 and $5,000, and 22 paid restitution of more than $5,000, including four who each paid more than $10,000.
Stakeholders in this issue fall into three camps -- (1) victim advocates, (2) those concerned with offender reintegration, and (3) those in charge of overseeing collection efforts. To victim advocates, the criminal justice system is not placing enough emphasis on justice for victims. Pamela Fergusion-Brey, Executive Director of the Crime Victim Compensation Commission, says the system should be "more victim-driven." According to Fergusion-Brey, "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."
Deputy Public Defender Susan Arnett, on the other hand, sees things a bit differently. She notes that her office's clients are indigent and often unable to find jobs because of 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 court should be functioning as a collection agency working on behalf of victims, without taking into account the bigger problem of ex-offenders having difficulty finding employment, is "a little too simplistic."
And, as already noted, probation officials seek a sort of middle ground, trying to balance the goal of reintegrating offenders into the community with the goal of collecting court-ordered restitution. They point out that, by finding employers willing to hire ex-offenders, both goals can be achieved.
On the administrative side, the inability of Hawaii's existing information system to generate integrated statistical reports makes it nearly impossible to assess the success or failure of restitution recovery. 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 tracking restitution.
"Until you start tracking what's outstanding," Howley says, "it's hard to get agencies to focus their attention on the problem, and see the scope of the problem."
According to Ferguson-Brey, "Many victims feel betrayed." At the same time, she acknowledges that very few offenders -- less than one percent, she estimates -- have significant assets at their disposal to pay for victims' losses.
Responding to the 1998 audit which was critical of its handling of restitution matters, Hawaii's judiciary established the position of victims assistance coordinator to answer questions and address the concerns of victims. Noreen Koshimoto, who has occupied the position for about 10 years, estimates that she receives 200-300 calls a year from victims, many of whom are frustrated by nonpayment of restitution.
Koshimoto's role, however, is limited. She follows up complaints about nonpayment with calls to the probation officer, who in turn contacts the offender. 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 delinquency notices, she estimates, eventually comply.
When victims question why they are not receiving higher amounts of restitution, or why the amounts have declined, all Koshimoto can do is explain that payments are based on an offender's ability to pay; because the details of an offender's financial circumstances are confidential under state law, however, she explains that she cannot disclose those details to third parties.
Victims can also turn to the Crime Victim Compensation Commission for compensation. Established in 1967, the Commission awards $600,000 to more than $1 million annually to victims of violent crime.
Civil lawsuits may be an option of last resort for victims seeking compensation. While it's relatively easy, under Hawaii state law, to get a civil judgment for the amount of outstanding restitution, enforcing that judgment is an entirely different matter. In fact, it's extremely difficult because lawyers are rarely willing to take on such cases; for them, because the amount of restitution is typically very little, it's simply not worth the time and effort.
Sources: Ken Kobayashi, Hawaii Star-Advertiser articles, June 26 & 27, 2011.
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