FALSE HOPE: PART 4 OF 4
It was a typical Monday morning for Charles LaVerdiere, chief judge for Maine District Courts: He presided at Waterville District Court, facing 125 people who needed to be arraigned between 8:30 and 11:30 a.m.
One by one, LaVerdiere informed each defendant of the charges for crimes ranging from simple theft to shoplifting, to OUIs, to domestic violence and assaults.
For more than a decade, LaVerdiere has dealt with thousands of defendants and hundreds of lawyers in his courtrooms, and in each case he has a lot on his mind: from making sure a defendant knows his rights, to constitutional issues, to setting a neutral tone — and doing it all quickly, with the weight of so many cases in so little time.
In the midst of all that comes restitution — a court order given to a convicted criminal to repay a victim for damages.
Later that week, in his office at the Maine Judicial Center in Augusta, he reflected on the concept of making victims whole through restitution.
“First of all, we recognize there is a loss,” he said. “And we recognize that when somebody has been violated by a crime, that it is an emotional as well as a financial hardship.”
The goal is “to do as much as the court can to collect what can be collected on behalf of victims.”
Still, the judge said, crime victims in Maine “need to be realistic about the fact that an award of restitution in a case does not necessarily translate to their receiving all of that money.”
A Maine Center for Public Interest Reporting investigation has found that the state system for compensating victims of nonviolent crimes is overburdened, uncoordinated and promises what it can’t deliver. For example, in Cumberland County alone, convicted criminals are $2.6 million behind on restitution payments.
“The system is imperfect and we know it,” LaVerdiere said.
He said that as a judge in Maine, he has found that the “vast majority” of people who come to court and agree to restitution payments find out later that they don’t have the ability to pay as promised.
“Many of them are indigent, many are hopeful they will become employed or that they will have the resources from one source or another to be able to pay,” he said, and a “very large percentage” of defendants are so poor they apply for free legal services by a court-appointed attorney.
Then why give sentences that include restitution? LaVerdiere said a judge’s role in restitution is confined by current law and past judicial decisions. For example, when it comes to the plea deals brought before him that may include orders of restitution, he can only accept or reject those deals.
His responsibility is not to investigate a defendant’s finances, but to act as a neutral party, make sure that the sentence fits the crime and that proceedings are carried out within the letter of the law.
LaVerdiere said the Maine Legislature in 1977 enacted the state’s restitution system as ancillary, or secondary, to the central objectives of criminal law.
Restitution, said LaVerdiere, is meant to “instill some responsibility on the part of the individual who committed the offense.”
“Restitution is oftentimes difficult simply because, despite the person’s interest in paying, they just don’t have that ability,” he said.
Hoping that the offender will one day pay restitution “is frustrating for victims, it is frustrating for DAs, it is frustrating for courts,” LaVerdiere said.
The making of the plea
Typically, the vast majority of sentences that include restitution also involve a plea agreement negotiated between the district attorney’s office and either the defendant’s counsel or the defendant directly, LaVerdiere said.
If the judge accepts it, then restitution becomes part of sentence.
If the judge rejects the plea, then further negotiation would occur and be brought before the judge for his consideration.
The case could go to trial, and if the “person is found to have committed the offense,” said LaVerdiere, “you’re again faced with the question of the amount that defendant can pay.”
During the behind-the-scenes plea agreements, defendants often will agree to restitution orders in exchange for reduced sentences — a process that happens far from the eyes of the judge, said John Pelletier, executive director of the Maine Commission on Indigent Legal Services.
“The judge is not listening to one lawyer saying, ‘The restitution is wrong,’ or ‘The client can’t afford it,’” said Pelletier. “The prosecutor is saying: ‘This is why we need restitution.’ Often the judge is not making a decision made on arguments; the judge is approving an agreement that’s been made.”
There’s a “large incentive” for defendants participating in plea agreements to agree to restitution, said Pelletier, because it “generally makes prosecutors much more willing to forgo other aspects of the sentence if they can get that restitution order.”
“You know, in frank terms, if the restitution is agreed to, and if it’s paid upfront, there’s often less jail time, or the fine might be less,” Pelletier said.
Maine statute requires that the court consider a person’s “present and future financial capacity” to pay restitution, Pelletier said.
“If a person in front of the court is able-bodied and has a potential to find a job,” that can be enough for establishing that ability to pay, Pelletier said.
At the same time, if a defendant in Maine says he has the ability to pay back restitution, he must be taken at his word, said LaVerdiere, citing the criminal code and past court decisions. There is no financial screening process.
Poor defendants “are often uneducated and have barriers to employment,” Pelletier said.
“It’s often the case that … paying all the restitution is not a realistic outcome for this individual,” Pelletier added. “I think that restitution gets quite a high priority from the courts and the prosecutors, so I think the determination of ability to pay is often made with some optimism.”
‘I can’t tell you …’
LaVerdiere said he cannot estimate how many people pay restitution in full.
“The only ones who the court sees are ones who are in default,” he said. “I can’t tell you if the vast majority of people pay restitution and never come back to court. Or whether all the people I see are highly representative of the group as a whole.”
Each district attorney’s office is responsible for maintaining all of its own information when it comes to how much restitution is owed. The state court system does not maintain such data, LaVerdiere said.
The Maine Legislature recently approved paying for a new case management system for the courts.
LaVerdiere said the new system will allow courts to better know how many people are ordered to pay restitution and transmit restitution orders directly to the DA’s office at the time of judgment.
“We will be able to electronically send information with regard to restitution to the Department of Corrections, to district attorneys, to victim advocates and others,” LaVerdiere said, noting that now such information is shared manually. “That manual system is not the greatest.”
‘It’s a resource issue’
LaVerdiere said it’s tough for victims to accept their restitution may never be paid in full.
“Unfortunately, there is no system that would allow us to guarantee every victim that they would be able to be reimbursed,” he said, noting that victims of crime may have options such as insurance or lawsuits to recover losses.
The judge said that though 100 percent collection is unlikely, the state’s system to assist crime victims owed restitution can improve. Enforcing and collecting restitution orders often boils down to a question of time and resources, said LaVerdiere, addressing a balancing act he knows well as a judge.
“It’s a resource issue,” said LaVerdiere. “But, we are again in a situation where the resources that we have available to be able to devote to this are limited. And we find that again a large portion of people just don’t have the ability to pay, no matter what the process is that we use.”
When it comes to restitution, Maine criminal code is focused primarily on the defendant’s ability to pay, LaVerdiere said.
A 2013 Maine Law Review article noted that in Maine’s criminal restitution system, defendants are given “near-endless extensions” to pay back restitution, while victims have fewer procedural rights in comparison.
“That’s a policy issue that the Legislature has grappled with in the past and I’m sure will grapple with in the future,” LaVerdiere said. “Until that law is changed, that’s the focus we have to place when making our decisions.”