Victim's Right to Criminal Restitution Ignored

Judge Persky Silent on Direct Order to the Victim...

July 20, 2016

Criminal Restitution Neglected - Opinion on the Stanford Sexual Assault Sentencing  

Last month, “Emily Doe” (pseudonym for the victim of the sexual assault case at Stanford University), captured the world’s attentions when she read her 12-page impact statement in court in Palo Alto, CA. The media around the nation has dissected every piece of information in this case, but no one has addressed the disparity in the “Restitution Order.” It is obvious to me that the victim’s right to restitution was not made clear to the victim. Also, the system responsible for direct victim restitution including the Victim Witness Advocate (VWA), the prosecutor, the probation officer (PO), the District Attorney (DA) restitution specialist, and the judge did not pay close attention to Emily Doe’s financial losses. Therefore, no order for direct restitution was made in this case. From Emily Doe’s statement in court, we know she was transported to the hospital by an ambulance, so there must be an ambulance bill. Also, we know she is seeing a therapist who is helping her with the emotional trauma this violation has taken on her and her family. Consequently, there is probably a counseling expense that the victim or her insurance company paid. Through the PO’s report, we know the officer did her due diligence to verify ifthe CA Victim Compensation paid any of the expenses. The PO called the DA restitution specialist who Type your paragraph here. verified that the victim and her sister filed claims with the local VW, but no expenses have been submitted for payment consideration. The question here is, “Why not, when it has been over a year since the incident happened?” From my lengthy experience as VWA Manager, I can tell you that the majority of VWA staff around the state wait for victims to hand them the bills when they can easily get a copy directly from the providers of service because the law authorizes them to do so. Victims are in too much shock and trauma, and many are unable to take care of things with the speed that a normal person can. In this case, the victim did not, and now the whole world can see how deeply traumatized she has been since the incident date.

We know that at least three victim service professionals, became aware prior to the sentencing that the victim had suffered a financial loss, but they did not follow-up to figure out the amount to reimburse her through the state fund and/or include in the pre-sentencing report for the judge to make the order. Even if the victim’s insurance covered the expense, it is still a valid restitution order. This is not an isolated case of missing the point on restitution. It is a normal, everyday practice in the criminal justice system and specifically in Santa Clara County that I’m well aware of.

Besides the direct restitution order to Emily Doe, the judge also did not follow the CA Judges Bench Guide on Restitution, where it recommends multiplying the minimum fine by the number of felony counts. Specifically, the formula in Penal Code 1202.4(b)(2) permits, but does not require, the court to set a restitution fine in a felony case as follows: $300 x number of years to be served x number of felony counts of which the defendant was convicted. In this case, the judge ordered only the minimum of $300 for such a severe case of three felony convictions. Note: ability to pay is not an issue for the perpetrator in this case, not that that matter when it comes to direct restitution order. I would also think that it would have made sense to order a higher restitution fine in lieu of such a light jail sentence (6 months, of which only 3 will be served). This category of restitution is the criminal’s debt to society, and is deposited into the State Restitution Fund to help crime victims. With such common disregard to replenish this very important fund, victims in general suffer. There are never enough funds to help all crime victims. In fact, if 100% of eligible victims knew about the state’s victim compensation fund and took advantage of it, the fund would go bankrupt very quickly, a sad fact applicable to every state compensation fund in the nation.

Santa Clara County Superior Court Judge Persky ordered the bare minimum in every category of restitution and waived the recommended fee that is payable to the Criminal Justice Agency that investigated the crime, because it was unclear which department it was. According to the transcript, the PO recommended City of Stanford to get this fee, but the judge said Stanford is not a city. The PO responded by saying the university has its own police department, but the prosecutor replied that it was under the jurisdiction of the Sheriff and should go to Santa Clara County. Ultimately, the judge waived it because of the conflicting information. Therefore, the law enforcement agency who investigated this case missed out on their right to the Criminal Justice Administrative fee of $129.75.

We all know “crime doesn’t pay,” but very few know the financial cost of crime on victims and society in general. The best available research tells us that crime victimization costs the United States $450 billion annually (National Institute of Justice, 1996). In 2008, researchers estimated that each rape cost approximately $151,423 (DeLisi, 2010). In Emily Doe’s sexual assault case, I would estimate a cost of about $300,000 up to the conviction date, yet the defendant was ordered and made responsible to pay only a total of $1800, plus $20 per month while on probation supervision. This is “Economic Injustice.”

In the criminal justice system, there are two main mechanisms for crime victims to obtain compensation for the costs resulting from a criminal act: restitution and crime victim compensation statutes. Having worked very closely with crime victims in the most progressive (as well as first in the nation) victim compensation program, I know firsthand that the majority of victims end up paying out of their pockets, and many suffer tremendous financial loss without ever knowing their right to restitution exits, and has existed for decades!

Restitution is like a puzzle with several different agencies holding different pieces and not working together to bring the puzzle to completion. The end result is not enough money is collected to bring the necessary relief to victims and society in general. The grief of financial loss is devastating and some victims never recover from it. When it comes to crimes, there are some things that society cannot control, but reimbursing victims for their financial losses is something we should be able to do, especially when our lawmakers have already put the foundations in place. Article 1, Section 28, subdivision b of the CA Constitution makes it clear that crime victims have the unequivocal right to restitution. The good news, the Court has the authority to modify its restitution order!

Margaret Petros is the Executive Director with MAM – Mothers Against Murder. MAM’s mission is to support survivors of murder as well as impact system changes to better serve all crime victims. Margaret is a professional victim advocate with over 30 years of experience in bringing relief to crime victims. Margaret has no standing in the Stanford Sexual Assault Case of Emily Doe, but is writing this opinion to bring awareness to a very serious issue of how restitution rights of victims are ignored.

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