Recognizing the Victim in Criminal Restitution

Recognizing the Victim in Criminal Restitution

Although the right to restitution is prescribed by law under the California Constitution and codified in the United States Code, all crime victims who would be entitled to obtain restitution are not automatically identified and awarded restitution orders. In practice, all potential victims may not be known to the prosecution and the court at the time of sentencing. Some crimes may also be misperceived as victimless crimes particularly where the victim is not a person but an entity. For instance, where the defendant is prosecuted for the crime of manufacturing and selling drugs, the court at the time of sentencing may not know of any victims arising from the criminal activity. However, if the offender operated the drug grow site by diverting resources such as water or electricity, both under state and federal law the utility entity may be considered a victim and may be entitled to restitution for the losses sustained and arising from the operation.

The California Constitution broadly states that all crime victims who suffer losses as a result of criminal activity have a right to receive restitution. (Cal. Const., art. I, § 28(b).) Restitution is also available in federal court pursuant to section 3663A(a)(1) of title 18 of the United States Code, requiring that the defendant make restitution to the victims. The restitution order requires that the offender compensate the crime victim for the economic loss sustained in the amount stated by the order. (18 U.S.C. § 3664(f)(1)(A); Pen. Code, § 1202.4(f).)

As is clearly stated in California Penal Code section 1202.4(k)(2), California inclusively identifies a victim as any one of the following, “a corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity when that entity is a direct victim of a crime.”

In federal court there is more ambiguity as to who can be considered a victim. The United States Code defines a “victim” as a person who was either directly or proximately harmed by the defendant’s commission of an “offense” as is further defined. (18 U.S.C. § 3663A(a)2).) Towards determining who is a person for purposes of restitution awards, we must turn to the decisions rendered in the federal circuits. In the case of United States v. Ruffen, the defendant contended that the Victim Witness Protection Act “was designed to protect human victims rather than a governmental entity.” (United States v. Ruffen (9th Cir. 1986) 780 F.2d 1493, 1496.) The court found that the “government ‘stands in the shoes’ of the taxpayers,” and Alameda County was determined to be a victim capable of receiving restitution. (Id.) The Ninth Circuit has since also held that the United States Post Office was a victim where a defendant was ordered to pay restitution for the underlying guilty plea of theft of postal money orders.” (United States v. Lincoln (9th Cir. 2002) 277 F.3d 1112, 1113.) Case law also supports the finding that corporations qualify as victims. The Ninth Circuit Court of Appeals upheld a restitution order to Aero Inn towards restoring its property which was damaged by a defendant’s operation of a methamphetamine lab. (United States v. Brock-Davis (9th Cir. 2007) 504 F.3d 991.)

In the same manner that potential victims may not be known to the court and prosecution at the time of defendant’s sentencing, the victims might not be aware of a pending criminal case in federal or state court. A victim needs to take the necessary steps to declare himself, herself, or itself a victim in any criminal case that may arise.

Murphy, Campbell, Alliston & Quinn assists public entities in recovering for losses from criminal activity such as power theft and damage to public property caused by intoxicated drivers.  Criminal restitution is an important part of ensuring public funds are returned to ratepayers and taxpayers.

By: Hilda Aguilar

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