The state fails to collect most of the money courts promise the wronged
POSTED: 1:30 a.m. HST, Jun 26, 2011
Sandra Storm-Conway and her relatives were supposed to be paid $500 a month in restitution to cover $7,000 in funeral expenses for her sister and cousin, who were killed in a horrific car collision four years ago.
But when they received their first checks from the driver who caused the crash, the payments were $50 for each funeral. Later, the amount dropped to $33.33. Then, payments stopped. When they resumed this year, they were $10.
Still haunted by what witnesses said was her sister screaming for help before she died, Storm-Conway calls the restitution payments "a huge travesty of justice."
"It's absolutely disrespectful to the victims in this case," Storm-Conway says. "Absolutely disrespectful."
It is estimated that thousands of Hawaii crime victims receive only a small fraction of the millions of dollars in restitution ordered by judges against offenders to cover the losses of those they harm. To many victims, restitution orders from judges have become illusory.
Restitution is based on victims' losses, but the amount a judge orders an offender to actually pay is based on the ability to make the payments, and many don't have assets or jobs.
And while victim advocates say the criminal justice system should place greater emphasis on justice for victims, other observers question whether the criminal justice system has the resources to serve as a collection agency. They point to staffing shortages and the system's public safety goal of reintegrating offenders into the community so they won't commit future crimes.
"It's an intractable problem," says retired Circuit Judge Michael Town, who was recently appointed to the Hawaii Paroling Authority board. Public safety, as well as accountability, including putting offenders behind bars, often "trumps" restitution, he said.
Dennis Dunn, director of Victim Witness Kokua Services at the city prosecutor's office, counters that when judges order restitution, it's a promise of justice. "When that promise is not delivered, it's justice denied," he said.
Low restitution recovery rates around the country reflect a "widespread failure" and a "heartbreaking disappointment" to crime victims, according to the National Center for Victims of Crime, a Washington, D.C.-based nonprofit organization.
By the numbersHere are figures from the state Judiciary, whose probation department handles payments from probationers and others under court supervision, and from the Department of Public Safety and Crime Victims Compensation Commission, both of which handle payments from prisoners and parolees. Judiciary officials say complete figures for probationers are not available because of their “antiquated” computer system.
PROBATION» About 20,000: Probationers and others under court supervision in Hawaii
» About $25.5 million: Restitution owed as of June 30 last year
» Unavailable: Probationers and others who must pay restitution
» Unavailable: Amount offenders must pay while on probation or under court supervision
» Unavailable: Amount those offenders paid
PRISONERS AND PAROLEES» About 5,956: State prisoners
» About 1,816: State parolees
» More than 1,100: State prisoners and parolees who owe restitution
» At least $15 million: Restitution those prisoners and parolees owe
» At least $800,000: Restitution paid by the 1,100 prisoners and parolees
Sources: State Judiciary; Crime Victim Compensation Commission
"It indicates to victims that their loss has been forgotten or disregarded, that what happened to them doesn't matter," Susan Howley, the center's public policy director, told the Star-Advertiser. "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."
The center notes that many jurisdictions don't track the amount of restitution ordered or collected, which makes it difficult to evaluate the various programs.
Hawaii is among the jurisdictions that do not keep comprehensive statistics, but authorities did provide numbers confirming that the amount collected is far less than the amount judges have ordered.
The total amount of outstanding restitution as of June 2010 was about $25.5 million, judicial officials said. But they said an "antiquated" computer management system prevents them from providing overall statistics on the recovery rate.
The state judiciary and its probation officials supervise about 20,000 offenders either on probation or under court supervision as they seek dismissal of their cases. Judicial officials have not compiled numbers on how many probationers owe money, the amount they owe based on the victims' losses, the amount probationers must pay and the amount they've paid.
The state's 1,800 parolees and 6,000 prisoners, meanwhile, fall under the jurisdiction of the Department of Public Safety's prison facilities and the Hawaii Paroling Authority, which have a better overview of the restitution collection. More than 1,100 must pay restitution, officials said. They were ordered to pay at least $15 million and they've paid at least $800,000, according to the Crime Victims Compensation Commission, which helps process the payments.
The disparity between the victims' losses and their payments generates dozens of calls each month to victims' advocates.
"Many victims feel betrayed," said Pamela Ferguson-Brey, executive director of the Crime Compensation Victim Commission, which provides money to victims of violent crimes. "They're not getting the justice that was promised to them by the courts and the judicial system."
Many victims also feel frustrated when probation officials aren't able to explain the reasons for a reduction in monthly payments other than saying it was based on the offenders' ability to pay. Under state law, probation records are confidential, which prohibits probation officials from disclosing an individual offender's assets, debts and expenses that led to the change in payments.
Despite the numerous complaints, state judges rarely see requests from probation officers to revoke probation or impose sanctions based solely on the offenders' failure to make the monthly payments.
Circuit Judge Richard Perkins, administrative judge for Oahu's circuit criminal bench, said that in his experience, requests to revoke probation based solely on nonpayment are "not seen very often." He said most revocation requests are based on multiple violations, and that each case is evaluated individually.
Christopher Van Marter, head of the city prosecutor's white-collar crime unit, said one reason for the low number of revocation nonpayment requests is restitution violations aren't treated as seriously as other violations, such as failing a drug test.
"It's not uncommon for the probation officer or the courts to wait for five, six or seven or more restitution violations before they take action," he said.
Janice Yamada, deputy chief administrator for the Kapolei courthouse and former head of Oahu's Adult Client Services, which includes the probation department, said probation officers do not automatically seek probation revocation if the offender misses a payment, which can be as low as $30 a month. She said they "don't want to revictimize the victims." "Our probation officers are really working hard to get them restitution," she said.
But the officers also must work with the probationers in trying to get them to become productive citizens, Yamada said.
If they miss payments, the officer must consider the probationer's individual circumstances, she said, adding that "some of them may be underemployed; they may be in drug treatment."
If the probationer is abiding by other conditions and making progress in his rehabilitation, such as successfully completing a drug or anger-management program, prison might not be the best place for those who miss their payments, Yamada said.
Yamada also cited a heavy caseload that averages about 180 probationers for each of the state's 110 probation officers.
With more officers, "they could be spending more time with each offender to be better able to monitor all the terms and conditions of probation," she said
For prisoners, the Department of Public Safety collects 10 percent of their prison wages for restitution, according to Tommy Johnson, Hawaii Paroling Authority administrator.
The prison wage is 25 cents an hour.
Once an offender is on parole, the parole officers set the payments at 10 percent to 20 percent of their wages, Johnson said.
Some Hawaii offenders have paid restitution in full, although the judiciary could not say how many.
The Crime Victim Compensation officials said 541 prisoners and parolees have paid the full amount of restitution, which represents 22 percent of the 2,412 restitution cases for prisoners and parolees that the commission has been monitoring since 2003.
Of those 541, about two-thirds, or 367, paid restitution below $1,000. Another 152 paid restitution of between $1,000 and $5,000, and 22 paid more than $5,000, including four who each paid more than $10,000.
The vast majority of victims, however, do not get full restitution.
Gary Kitagawa's parents' car was stolen three years ago. The thief, who pleaded guilty and received a one-year jail term, was ordered last year to pay about $13,000 in restitution. He was 18, unemployed and struggling with a meth problem when the car was stolen, according to the court file.
Kitagawa said his father, 87, and mother, 86, have yet to receive any payment.
"I would be extremely disappointed in the enforcement capabilities that should be in place for a situation like this," he said.
Corina Lee closed her home care business last year after her director of operations embezzled money. The former employee was sentenced in October to nine months in jail and five years' probation and ordered to pay $125,400 in restitution at a rate of $350 a month.
Lee said she had to close her business because of related complications, including the former employee's failure to pay payroll taxes, which led to problems with the Internal Revenue Service. She had 65 employees and 35 patients.
Lee, now nursing director for a home care company, said she hasn't received any payments and doesn't know how the former employee will be able to pay the restitution.
"I don't know how one person can destroy people's lives so badly," Lee said, choking back tears.