By Emily M. Gause
(As published in Washington Criminal Defense Magazine, August 2018)
As criminal defense attorneys (aka freedom fighters), we are all aware of the ways legal financial obligations can result in a “debtors prison” that continues to shackle our clients to the system well after they are finished serving a sentence. The median legal financial obligation (LFO) in the State of Washington leaves the average person carrying $1,110 of debt on their back as they attempt to reenter society.[i] Before June 7, 2018, that debt was subject to a 12% interest rate. Recent legislation just changed that, but not for restitution.[ii]
The average amount of restitution per case is $2,540.[iii] The interest on restitution alone can make paying it off impossible. For example, a person who can only afford to pay $20 per month in an effort to repay the average $2,500 debt may remain indebted to the court even after years of regular payment. In fact, a person who owed $2,500 in debt will owe $300 in interest by the end of the first year that the restitution is owed. At a rate of $20 per month, the person will not even be able to pay off the interest that accrued on the debt, let alone the initial debt itself. LFOs cannot be discharged in bankruptcy, and many never expire. Those who are unable to pay their LFOs may even be arrested and end up in jail. [iv]
According to the Washington Office of Public Defense, 80-90% of people charged with felonies are indigent. And according to a 2010 report from the Brennan Center for Justice, 60% of former inmates are still unemployed one year after leaving prison. This means that our advocacy at restitution hearings can have an incredible impact on our clients, often helping pave the way for their successful reentry into society and ability to afford housing. Financial stability can deter people from becoming desperate and engaging in behaviors that got them involved in the criminal justice system to begin with.
My brilliant colleagues, I call you to action. Fight against restitution every chance you can.
In one year alone, I was able to save my clients from paying $73,000 in restitution. I did this with three different arguments: (1) challenging the amount the government wanted my client to pay, (2) objecting to restitution because the state could not show that my client’s actions caused the damage or harm for which compensation was sought, and (3) disputing the court’s authority to impose restitution when the 180-day time limit had expired. That’s a lot of money! In one case, my objection to extending the time period for good cause after the 180-day clock ran out saved my 22-year-old client from paying over $52,000.
Look, I understand that by the time a restitution request lands on our desk, we have long forgotten about our client’s particular case. We may have closed the file. We haven’t spoken to the client in months. There are no pending hearings to keep this case on our radar. It is easy to rush through the amount requested by the state, assume it’s a reasonable request after our cursory glance, call our client for a quick chat where we advise they just agree to the amount, and sign the line on the agreed restitution order. But, I am writing today to ask you to not overlook this area for advocacy. Even for small amounts, less than $1,000, your challenge to the restitution request can alleviate a huge barrier to your client’s financial success moving forward. It often does not take more than filing one 2-3 page brief and showing up for a contested hearing to make your position clear. And let me tell you, judges are listening. Of the four challenges to restitution I made in that year, I prevailed in all four. If you provide the clear authority to give the judge a reason not to saddle your client with enormous debt, judges often do the right thing.
Restitution is an order by a sentencing court that our client must pay a specific amount of money over a designated period of time to eligible victims as reparations for damages following conviction. RCW 9.94A.030(43). A court may order restitution to compensate for damages to property and medical costs and lost wages arising from personal injuries; damages stemming from intangible harms, such as mental anguish or pain and suffering, are not appropriate bases for restitution. RCW 9.94A.753(3). Additionally, the total restitution amount cannot be greater than double the amount of the defendant’s gain or the victim’s damages resulting from the crime. Id.
Here are some ideas for challenges to restitution:
- Object to imposition of restitution in co-defendant case where your client didn’t cause the damage or injury. Look for other challenges to causation – ie: that your client’s act caused the injury.
- The restitution statute provides a trial court with the discretion to order a defendant to pay restitution for the expenses that are caused by his or her criminal acts. State v. Enstone, 137 Wn.2d 675, 680, 974 P.2d 828, 830 (1999) (emphasis added). A trial court's discretion in awarding restitution is limited to the precise offense charged. State v. Ashley, 40 Wn. App. 877, 878–79, 700 P.2d 1207 (1985) (citing State v. Mark, 36 Wn. App. 428, 675 P.2d 1250 (1984)). “Restitution may not be based on acts connected with the crime charged, when those acts are not part of the charge.” State v. Hartwell, 38 Wn. App. 135, 141, 684 P.2d 778 (1984). A trial court may order restitution when the victim's damage was a foreseeable consequence of the defendant's criminal acts. State v. Steward, 52 Wn. App. 413, 416, 760 P.2d 939 (1988).
- Object to paying for victim counseling records unless the State has shown that the topics addressed in counseling are directly related to the defendant’s criminal act. Ask for proof that the counseling did not begin prior to the criminal act. Ask for records sufficient to prove that the counsel is related to this offense and not addressing other life events.
- Restitution shall not include reimbursement for damages for mental anguish, pain and suffering, or other intangible losses, but may include the costs of counseling reasonably related to the offense. RCW 9.94A753.
- Object to your client paying restitution for crimes she was not charged with or did not plead guilty to.
- A defendant may not be required to pay restitution beyond the crime charged or for other uncharged offenses. State v. Tindal, 50 Wn. App. 401, 403, 748 P.2d 695 (1988) ( “Restitution may not be based on acts connected with the crime charged when those acts are not part of the charge.”). An exception to this general rule exists where the defendant pleads guilty and expressly agrees to pay restitution for crimes for which the defendant was not convicted. RCW 9.94A.142(2); State v. Raleigh, 50 Wn. App. 248, 252, 748 P.2d 267, review denied, 110 Wn.2d 1017 (1988).
- Be diligent in checking when the statutory time limit expires. If the State does not request an extension of the 180-day time period for good cause before it lapses, there is no authority to order restitution.
- When ordering restitution the trial court must set the specific amount either at the sentencing hearing or within 180 days of that hearing; this time limit is mandatory. State v. Grantham, 174 Wn. App. 399, 299 P.3d 21 (2013). The limit acts like an ordinary statute of limitations, Id., and prevents delay in resolution of criminal charges. State v. Duvall, 86 Wn. App. 871, 940 P.2d 671 (1997). Courts have the authority to extend this time limit if requested by a party prior to the deadline when good cause exists for doing so. State v. Grantham, 174 Wn. App. 399, 299 P.3d 21 (2013).
- Object if the government attempts to get restitution for someone other than a victim.
- Restitution is statutorily limited to victims. State v. Ewing, 102 Wn. App. 349, 7 P.3d 835 (2000). However, the term “victim” applies more broadly than to the immediate victim of a crime; the term also includes both individuals and entities who suffer financial losses from assisting direct victims. State v. Cawyer, 182 Wn. App. 610, 330 P.3d 219 (2014). For example, an insurance company that pays benefits to a direct victim of an offense is eligible to receive restitution. State v. Ewing, 102 Wn.App. 349, 7 P.3d 835 (2000).
I hope that these ideas give you something to start with. Take a look at the cases on restitution and craft new and unique challenges. Be a warrior! I’d love to hear your experiences with fighting restitution and celebrate your victories with you.
Emily M. Gause has her own criminal defense practice, Gause Law Offices PLLC. She focuses on defending juveniles and adults accused of serious felonies in both state and federal courts throughout Washington. She can be reached at firstname.lastname@example.org.
[i] Washington State Minority and Justice Commission report: The Assessment and Consequences of Legal Financial Obligations in Washington State, 2008.
[ii] “Legislature passes bill to bring fairness to Washington’s system of Legal Financial Obligations,” American Civil Liberties Union, March 6, 2018.
[iii] According to the Washington State Office of Public Defense website.
[iv] Modern-Day Debtors’ Prisons: How Court Imposed Debts Punish Poor People in Washington, Columbia Legal Services and ACLU, January 2014.