PART 3 OF 4
For Linda Descoteaux of Saco, the last nine years have been full of calls, letters and promises from Maine courts that go unfulfilled.
When a man defrauded her of $4,000 in 2005, the York County district attorney’s office sent her a letter saying he’d pay her back part of what he stole by 2009.
“[H]e will pay you restitution in the amount of $1,500 by the 46th month of probation,” wrote Patrick Gordon, York County Courthouse assistant district attorney, in a letter dated Sept. 7, 2005.
Since then, she said she has received only a single $110.66 check.
“I’ve called and called and called,” said Descoteaux, who is in her 50s and works as a bookkeeper. “I mean, I’ll call them again. It’s like, I hate to be blunt: It’s shoveling s—- against the tide. I don’t think I’m going to get anywhere.”
In Maine, victims are nearly alone in navigating a confusing and understaffed restitution system that purports to make them “whole.” In interviews with 10 Maine crime victims, victims like Descoteaux told the Maine Center for Public Interest Reporting they get limited notification from the state about restitution, have no way to dispute a sentence that either sets too little or no restitution, and end up with false promises of restitution.
For Descoteaux, it all began when she saw a home repair truck, called the phone number on it, and hired Peter Paul Gattuso to re-side her house.
“He tore the siding off my house, left, and he didn’t show up, he didn’t show up, didn’t show up,” she said. “I had paid for the whole job.”
She and her husband then called the police, who brought Gattuso over to retrieve the materials he had left behind.
She kept all three letters she has received from the courts since.
On Aug. 30, 2005, Gattuso pleaded guilty to four counts of home repair fraud and was sentenced to 180 days in jail with the entire sentence suspended, according to the Sept. 7 letter Descoteaux received from Gordon. Gattuso received four years of probation, during which he had to pay restitution.
The letter included the numbers for the Department of Corrections victim advocate and the regional probation and parole department, in case she had questions about restitution.
Descoteaux said she has called both, but to no avail.
“They tell me, ‘Yup, yup, we’re going to get it.’ And nothing,” she said.
That first letter also said if Gattuso violates probation conditions, he “faces the possibility of being returned to jail to serve the remaining and/or suspended portion of his sentence.”
The second letter, from Pamela Roberts, York County Courthouse victim witness director, said Gattuso was scheduled for a probation revocation hearing on Nov. 6, 2006.
The last letter, sent Jan. 25, 2007, from Assistant District Attorney Brian N. Roberts, said Gattuso pleaded guilty to “a probation revocation” and was to serve five months in jail. Gattuso was then to enroll in a residential substance abuse program and prohibited from being self-employed in the home repair business. In addition to continuing on probation for three more years, he was required to pay restitution.
In the years since, Descoteaux said she has only heard excuses.
“The first excuse was he was in jail,” she said. “The second excuse was, they were not quite sure where he was. Then they said he was getting a settlement from Social Security. It was going to be a big sum. They were going to get the money from that, and they were going to call me back.”
Here, Descoteaux laughed. “And I’ve never heard anything.”
That last call happened at the end of 2011, she said.
Descoteaux said she was one of several victims of Gattuso’s on the same restitution order, and she doesn’t know if anyone else got the money owed them.
“You don’t know where to go,” she said. “Other than call the people that sign these letters.”
But, Descoteaux said, when she made those calls she felt she was just being “pacified.”
“They don’t help you,” she said. “He was supposed to have my $1,500 paid up by the 46 months of probation. It doesn’t do much for the justice system. It’s like, really, why bother? It’s not going to do a darn thing for you anyways. All they do is kill a bunch of trees writing you letters, because they don’t enforce it.”
York County District Attorney Kathryn Slattery was unable to comment on this particular case. She did say that at the courthouse there is one person assigned to all restitution issues in York County.
“That’s enormous, and she does a phenomenal job notifying people,” Slattery said. “If she missed somebody, it’s due to being overwhelmed.”
Few legal protections
In Maine, the criminal restitution system gives victims of crime, like Descoteaux, fewer rights than the criminal.
This was confirmed by a 2013 Maine Law Review article by Benjamin Birney, a judicial law clerk.
The “offender-focused” nature of Maine’s restitution system could be improved “with respect to crime victims by giving victims greater procedural and substantive rights to restitution,” wrote Birney, who declined to be interviewed for this article, citing ethical concerns given his position.
“A victim who sits on the sidelines of the criminal justice system, as Maine victims to a large degree currently do, gains little psychological advantage,” Birney wrote. For example, “his restitution is reduced or eliminated if it would be too burdensome on the criminal who hurt him or violated his privacy or property.”
Among the problems Birney noted:
— Maine provides no legal mechanisms for victims to challenge a restitution order if they believe “a sentencing judge erred in not awarding restitution, or in determining the amount of restitution.”
— Offenders ordered to pay restitution but unwilling to do so “can often obtain near-endless extensions from a judge without being truly coerced by the threat of a return to prison.”
— Unlike half of all U.S. states, restitution is not mandatory — or required except in extraordinary circumstances — in Maine. Here, victims have no individual right to “full and timely” restitution as they do in the federal courts.
Compensation for some
When it comes to compensation, there are two classes of crime victims in Maine: victims of violent crimes, such as rape or murder, and all other victims, such as Descoteaux.
The first group has a much better chance of getting at least some compensation than the second.
Victims of violent crimes can apply to the state Victim Compensation Fund, run by the attorney general’s office. But victims of nonviolent crimes cannot.
Legislators created the fund that helps victims, dependents and family members in 1992. No taxpayer dollars go into the fund, which instead gets money from federal and Maine criminal fees.
Defendants convicted of a crime in Maine pay $20 or $35 into the fund, depending on the class of crime. Judges used to be able to waive this fine until 2012, when Gov. Paul LePage signed a bill disallowing the practice.
The attorney general’s office website describes the fund as a “payor of last resort.”
Still, the fund has helped thousands of crime victims over more than 20 years, distributing $519,057 to victims in 2013. Compensation can cover medical costs, counseling, funeral expenses, lost income, crime scene clean-up and the repair or replacement of locks and other security devices.
The fund doesn’t include property loss, compensation for pain and suffering and other nonmedical costs such as travel, legal or relocation expenses.
The cap on the award is $15,000, and the average is $2,500, according to fund director Deborah Shaw Rice.
But victims of scams, break-ins, car thefts, bad checks and the whole range of nonviolent crime can’t tap that fund. Even if they could, Rice said, “there isn’t enough money for us to cover” restitution for the victims of nonviolent crime.
“We could never expand to other crimes like property crimes, which could go up to thousands or hundreds of thousands of dollars,” she said.
If those crime victims want to be repaid for their loss they have to hope the bad guy is caught and gets a restitution order and payment schedule. But even then, those in the criminal justice system agree the odds of getting all the money are long.
To get restitution enforced, crime victims can either try to work with the prosecutor to bring the defendant in for a hearing, or go through the costly, burdensome and sometimes futile process of filing a civil suit.
John Pelletier is executive director of the Maine Commission on Indigent Legal Services. He said “the most efficient” option is working with a prosecutor to bring a motion to enforce restitution.
“Filing a lawsuit and proving a negligence claim or even a battery claim, if you’re a victim of an assault, can be expensive and cumbersome,” said Pelletier.
Another avenue for victims looking for restitution has potential, but has gone nowhere.
In 2011, the Maine Legislature passed a law establishing a fund solely for elderly victims owed restitution for financial crimes — but to date, plans for the fund are still in the works, according to the Department of Corrections.
The Department of Corrections is one state agency responsible for collecting restitution, and has four victim advocates in its offices to help all crime victims in Maine with everything from notification when offenders leave jail to safety planning to restitution, according to Jody Breton, associate commissioner of the department.
‘Another bad decision’
“There’s issues on both sides,” said Pelletier, the lawyer who works with poor defendants. Felons “are saddled with unrealistic restitution obligations and victims who suffer very large losses, according to the letter of a court judgment, should be receiving a lot of money, and they’re not.”
Pelletier said offenders often don’t want to jeopardize their plea agreement for a lesser sentence, so they don’t “make a big fuss” about an unrealistic restitution payment — even though they lack the means to pay it.
If they object too much, he said, a judge might hold that “against them as an indication they’re not willing to accept responsibility for the damage they caused.”
Criminal defense lawyer Walter McKee said for offenders who commit costly crimes, agreeing to a restitution order can be “another bad decision.”
“They’ll agree to whatever it takes to get out,” McKee said. “The harness of restitution is now over their head.”
In Birney’s article on restitution in Maine, he wrote that the “incentives on offenders to actually pay are currently weak. Furthermore, assisting probationers in finding and keeping jobs would reduce the problem of criminals’ frequently limited ability to pay larger restitution awards.”
A classic case, said McKee, is an 18-year-old convicted of smashing a mailbox, charged with criminal mischief and ordered to pay back the victim $500 in restitution.
“He’s hauled into court, which starts a process which is just constant,” he said. “We make a payment plan, he doesn’t make it, he gets hauled back in for failure to make payment.”
‘Nobody ever called me!’
More attention needs to be focused on developing new ways to help Maine crime victims, said Mary Farrar, who worked with crime victims for 21 years through positions at the Somerset County district attorney’s office, the Department of Corrections and attorney general’s office. She pointed to Washington state, which has helped pioneer “one-stop shopping centers for victims.”
The public needs to seriously evaluate Maine’s restitution system and how it determines a crime victim’s loss, she added.
“Victims, when they have to go to court, they have to take time off work,” Farrar said. “If they have children, they have to find babysitters. We don’t look at the whole picture of what costs a victim incurs.”
Saco victim Descoteaux said she never was given a chance to dispute the restitution order, which was not even half the total amount she lost because of the crime.
“I thought, oh well, better than nothing,” she said. “But, it is nothing.”
The last time her husband called the courts, Descoteaux said he was advised to get a lawyer and sue Gattuso in civil court.
“We shouldn’t have to,” she said, not when a criminal court has ordered the money to be paid.
After the interview with the Maine Center for Public Interest Reporting, Descoteaux decided to call the York County DA’s office again.
“Guess what Debbie from there told me,” wrote Descoteau in an email. “Apparently Mr. Gattuso was arrested again and was brought to court on Feb. 4, 2013 and the judge decided that restitution was probably never going to be paid and sentenced him to 6 months in jail instead. I never would have known if I hadn’t called today. Nobody ever called me!”
Last part of series: A judge speaks