Tuesday, November 24, 2015         


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Convicts called too poor to pay

Employers should hire criminals as a way of enabling them to remit funds as ordered by the courts, probation officials and others say

By Ken Kobayashi


Most of Hawaii's criminal offenders have not paid the restitution they owe their victims, a problem that won't improve unless key players in the criminal justice system place a greater emphasis on collecting the money, victims advocates say.

The advocates say that too many in the system have a "can't do" attitude based on the notion that one "can't squeeze blood from a stone."

"You can't tell me there's any offender who can't pay $2,000 over five years (of probation)," said Dennis Dunn, director of Victim Witness Kokua Services of the city prosecutor's office.

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 are we going to make sure they become whole again," she said.

But probation officials and others say the issue is more complicated. The way to increase the restitution rate without sidetracking offenders from rehabilitation is for employers to give them jobs, they contend.

"It's a little too simplistic to say the court should be functioning as a collection agency for the victim and collecting all this money," said Deputy Public Defender Susan Arnett.

Probation officials say they must balance the reintegration of offenders into the community with payments of the court-ordered restitution.

Arnett said her office's clients are indigent and that their ability to pay restitution might be even more limited because they must carry the stigma of a criminal conviction when they look for jobs.

"I honestly don't think the problem is people out there with a significant ability to pay who aren't paying," she said.

The bigger problem, she said, is that it's difficult for probationers to find work.

Victims have two other avenues to receive compensation.

The Crime Victim Compensation Commission provides money to victims of violent crimes up to $20,000 for medical expenses or $10,000 for medical and other costs, such as lost wages and funeral expenses.

The commission pays victims from compensation fees that offenders must pay as well as restitution payments from offenders for cases in which the commission has already paid their victims.

Since the commission was established in 1967, it has processed more than 21,000 applications for payments and awarded $600,000 to more than $1 million annually to victims, according to the commission's annual report last year.

Victims can also pursue their own civil lawsuits, but they usually involve offenders who have assets or other parties who might be held liable for the injuries, such as a bar that sold alcohol to an offender who drove drunk and injured victims.

But those cases are rare.

Ferguson-Brey estimates that less than 1 percent of offenders have significant assets to pay for victims' losses.

Under state law, victims automatically can get a civil judgment for the restitution that the offender hasn't paid while under court, prison or parole supervision. But hiring a lawyer to enforce the judgment and recover money is difficult.

The amount might not be worth the expense or an attorney's time to find the offender, determine whether he or she has a job or assets, and file liens or garnishments to recover the money, according to many lawyers.

"I'm sure it's happened, but I've never heard any attorney collecting one penny on a restitution order," said William Plum, a Honolulu attorney who handles collection cases.

The point is underscored by the Crime Victim Compensation Commission, which does not pursue its civil judgments against offenders for reimbursement.

Ferguson-Brey said hiring a lawyer is "not economically feasible," especially if the restitution amount is relatively low, such as several thousand dollars.

Because of the difficulty in enforcing those civil judgments, victims advocates say it is essential for the justice system to get money for the victims while the offenders are under its supervision.

They applaud the attitude of officials such as city Prosecutor Keith Kaneshiro, who took office last year and promises a zero-tolerance approach to probationers failing to make their payments.

"In my administration we will actively and aggressively pursue restitution," he said.

He said his office has to rely on probation officials who monitor the probationers, but said, "If we hear anything about restitution not being paid, we will not hesitate to file motions."

"When you don't comply with those conditions, you're defying the court," the prosecutor said. "I think the courts should take it seriously."

City Deputy Prosecutor Chris Van Marter, head of the office's white-collar crime unit, tries to collect restitution for victims at sentencing by insisting first-time offenders pay the money as part of plea agreements.

Van Marter seeks the payments in exchange for not recommending a prison term. The unit collected about $1.6 million, or about two-thirds of the amount of restitution, in about 30 cases in the past six years, a rate believed to be much higher than for victims of violent crime.

"History and practice have shown that the courts and the probation officers are less effective at collecting restitution for victims," he said.

The leadership of Hawaii Paroling Authority Administrator Tommy Johnson is also cited by victims advocates.

Johnson said they've made payments of restitution a priority, including deducting 10 percent of an inmate's 25 cents-an-hour wages for restitution. He also queries his parole officers each month on the amount their parolees pay.

Although the recovery rate of restitution for prisoners and parolees is less than 10 percent, the amount collected has been increasing in the past six years, an indication that leadership can raise the recovery rate, victims advocates say.

Johnson said he emphasizes restitution collection because in addition to helping the victims, "part of the successful integration is taking responsibility for your crimes and paying your bills, if you will."

Ferguson-Brey suggests that ways to improve restitution collection include an amendment to the state Constitution to give victims themselves the right to recover restitution through the criminal justice system.

Another suggestion is to create a restitution court similar to one in Maricopa County, Ariz., a program highlighted by the National Center for Victims of Crime. Offenders who don't pay restitution are hauled into court and questioned by the judge about expenses, such as whether they have cable and special sports programs for their television.

If it's found that the offenders can pay, but refuse, they can be jailed on civil contempt. About $200,000 in delinquent restitution payments was collected in 18 months, the center said.

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