Building Alternatives, States Expand Non-Monetary Restitution and Restorative Justice Approaches

Posted by Darlene Conroy
November 02, 2017

Juvenile justice systems all over the country aim to incorporate accountability into their efforts at youth rehabilitation.  Research shows that court-imposed financial obligations can push a young person deeper into the juvenile justice system,

and in turn can increase the likelihood of recidivism and exacerbate racial disparities in the system, especially when inability to pay leads to incarceration.[1]  Some states in recent years have revisited their policies in pursuit of more equitable outcomes for young people.

States have looked closely at how to weigh factors like monetary loss to crime victims and the financial means of a child adjudicated delinquent.  In doing so, they have gone beyond pursuing just monetary recovery in favor of holistic approaches to helping victims recover and fostering a sense of community.  Recent policy innovations include prioritizing restitution over other money obligations, focusing repayment on out-of-pocket loss, moderating conditions imposed to allow the opportunity to earn money toward restitution, separating restitution requirements from completion of supervision, and encouraging the use of restorative justice programs.

In Utah, H.B. 239 (2017) expands mediation between young people and victims to find an appropriate non-monetary restitution remedy that will make recompense for the victim and be realistic for the youth in light of the other rehabilitative and prosocial requirements ordered by the court.  The court, with agreement of the victim and youth, can refer the case to this sort of mediation to determine “how loss resulting from the adjudicated act may be addressed.”  Vermont enacted a similar provision, providing that when a young person is unable to pay the restitution judgment order at the time of disposition, the court may refer the case to a restorative justice program.  West Virginia’s S.B. 393 (2015) allows children charged with status and nonviolent misdemeanor offenses to be diverted to a program that emphasizes dialogue and repairing the harm against the victim and the community.  Youth Reporting Centers (community-based sites providing services to system-involved youths) have been building these diversion programs across the state.  Hawaii’s H.B. 2490 (2014) expanded the use of informal adjustment, requiring its use for status offenders and establishing consistent criteria for discretionary use in other cases; this adjustment can include “restitution projects” designed to make amends.  In pursuing these approaches, states offer victims and youth alike an opportunity to explore recovery beyond the strictly financial sense – with the hope that stronger community bonds might be forged.

States have also enacted policies explicitly aimed at focusing financial obligations on out-of-pocket losses.  In light of poor outcomes shown for out-of-home placement for court-imposed financial obligations, South Dakota (S.B. 73 (2015)), Kansas (S.B. 367 (2016)), and Utah prohibit its use based on nonpayment.  Utah explicitly prioritizes the payment of restitution over other monetary obligations like fines or fees (meaning that any funds a young person pays must go first towards restitution).  In Utah and Vermont, restitution can only be ordered for a victim’s material loss (such as property loss, out-of-pocket monetary loss, lost wages, or medical expenses), and cannot be ordered if the youth is unable to pay.  New York caps the amount of unreimbursed medical expenses that can be included in restitution (N.Y. Fam. Ct. Act §353.6). 

In Kansas, Utah, and Wisconsin (Wis. Stat. Ann. §§ 938.32, 938.361(2)), restitution obligations can be converted to service hours.  Wisconsin caps both, at $250 or 40 hours, for youth under age 14.  In Utah and Washington (Wash. Rev. Code Ann. § 13.40.180(1)(c)), fines and fees are explicitly capped by dollar or hour amount so that young people can complete their court requirements in a reasonable timeframe, and in Texas fines and fees can be waived based on inability to pay (Tex. Fam. Code Ann. §§ 54.061, 61.002, 54.0461).  New Jersey (N.J. Stat. Ann. § 2A:4A-43(b)(9)) and Utah require an ability-to-pay determination in any restitution ordered, and Kansas requires that children be allowed to complete diversion regardless of ability to pay.  South Dakota and Kansas prohibit continued court supervision where the only purpose is to settle financial obligations. 

Taken together, these states have shifted away from financial penalties that may be difficult for young people and their families to meet, towards a more multifaceted model of justice and accountability.  Because it is backed by research and evidence, this model holds the promise of better outcomes for young people and their communities.

[1] Juvenile Law Center, “Debtors’ Prison for Kids?” http://debtorsprison.jlc.org/documents/JLC-Debtors-Prison.pdf; Alex Piquero & Wesley Jennings, “Justice System Imposed Financial Penalties Increase the Likelihood of Recidivism in a Sample of Adolescent Offenders,” DRAFT, Juvenile Law Center, http://debtorsprison.jlc.org/documents/JLC-Debtors-Prison-criminology-study.pdf.