Marsy's Law -- Restitution
You can imagine the late-night commercial. Frowning attorney staring into the camera and barking, "House broken into? Mugged? Shot? Call Attorney Tim Mistronski today! I'll make them pay!"
That last line might be problematic; local Cleveland attorney Tim Misny not only popularized the phrase in a long-running series of campy TV ads, he's trademarked it. But Marsy's Law, the Victim's Rights amendment passed by an overwhelming margin by Ohio voters last November, might provide a basis for the rest of the script.
There are certainly problems with the act. There's the provision which permits the victim to "deny discovery," whatever that means. One allows a plea or sentence to be vacated if the victim wasn't notified of the hearing. Another allows the victim, when counts are dismissed, to "exercise all rights of a crime victim throughout the criminal justice system as though the counts or counts involving the person had not been dismissed."
That suggests that a victim whose count is dismissed can still pursue restitution. So let's take a look at that. (Keep in mind that there will be legislation to implement Marsy's Law. What I'm addressing here is the language that's been proposed by the drafters of the Amendment for adoption by the General Assembly.)
First, we start with the proposition that restitution is no longer optional; the court shall impose restitution in every case, other than a minor misdemeanor. That's not that big a deal; under the proposed change to the financial sanctions section, RC 2929.18, restitution is limited to the victim's "economic losses." So if the perp sends the victim to the hospital, the victim is entitled to restitution for his medical bills, minus what was paid by insurance. That's pretty much how it works now.
But then we come to the modifications to RC 2929.281, which provides a definition of what "past and future economic loss" includes. If somebody burglarizes your home, the court can order them to pay the costs of installing an alarm system in your house. If a "mental health treatment provider" says it's necessary for your "emotional wellbeing" to relocate away from the offender, he can be ordered to pay the costs for your move. If somebody steals your credit card, they can be ordered to pay the costs of monitoring your credit report, or to repair your credit.
And then there's this: The court can order restitution for "non-economic losses, including, but not limited to, psychological harm for violent felony and misdemeanor crimes."
We'll set aside the logical legerdemain by which we define "economic losses" as "non-economic losses." And we'll stick to "psychological harm" for a minute, as that's what the proposed statute specifically addresses. Plus, it's limited to "offenses of violence."
As those who have handled expungements know, though, the list of "offenses of violence" has grown through the years. Inducing panic - setting off a fake fire alarm - is one. So is simple assault. So is breaking into a house when the owner's on vacation. So is a teacher having sex with a student. In fact, the county prosecutor's office recently argued in a Supreme Court case that any sexual assault necessarily results in psychological harm.
The proposed statute also specifies that the "non-economic losses" aren't limited to psychological harm. We've reviewed other types of harm -- the alarm system, relocation, medical bills, lost wages -- so what's left? How about physical harm? Let's go back to the perp sending you to the hospital. In the context of the proposal, it's difficult to argue that your loss is limited to what the insurance company didn't pay to the hospital.
The logical rejoinder is that you still have to prove your damages. If you didn't get any medical treatment, you might be hard-pressed to argue that you suffered any physical harm. Or not; after all, this isn't going in front of jurors ingrained by years of stories about frivolous lawsuits to cast a skeptical eye toward a plaintiff's complaints of injury. This is a judge deciding whether a sympathetic victim should be awarded money from a decidedly unsympathetic defendant.
To square the circle we began at the top of this post, while a victim is not entitled to appointed counsel, they are entitled to "actual and reasonable attorney fees and other costs of collection accrued by a private entity on behalf of a victim."
Now, I'm not suggesting that lawyers are going to fall all over themselves rushing to set up boutique practices pursuing defendants, 80% of whom are indigent, for restitution. (But the idea isn't as far-fetched as it might seem; as this post recounts, one lawyer earned his client $170,000 in restitution from child pornography defendants in a single year.) But lawyers wading into that fray is a bit more likely given the exalted status restitution plays under Marsy's law: it gets paid off the top -- before court costs, fines, and fees -- and can't be worked off through community service.
There's a temptation to shrug this off. If a victim wants to pursue some blood-from-stone experiment attempting to extract money from someone who's going to be making 80 cents an hour at Casa Kasich for the next three years, what's the big deal?
Well, that award follows the defendant after he walks out of prison. If the victim asks for one, the judge has to hold a hearing on the failure of a defendant to pay restitution, and if the court finds that the defendant "willfully failed to pay restitution," or "intentionally refused to make a good faith effort to obtain the monies required for the payment," it can "order the defendant incarcerated in the county jail" until restitution is paid.
That should work.
And keep in mind that restitution is part of a sentence, and that means the time before an expungement can be filed doesn't begin to run until it's paid.
I wish the way Marsy's law handles restitution is the biggest problem with the new law. It's not. We'll talk about the rest in the coming weeks.
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