Over the years, we have come across numerous victims who have lost relatives in drunk driving accidents, truck accidents, and numerous other types of calamities where the perpetrator was charged with a crime. A surprising number of these folks have been under the impression that they don't need to retain a personal injury attorney because the court will order the wrong-doer to pay restitution.
What these folks don't realize is the limits of restitution. First, in Texas, restitution can only cover actual economic losses. These generally fall into three categories, medical bills, lost income, and property. Courts cannot consider non-economic injuries such as mental anguish, loss of consortium, or pain and suffering. Another problem with restitution is that the amounts are up to a judges discretion and based upon victims impact statements.
Sadly, most people greatly underestimate their losses by not taking into account future lost income and future medical expenses. If that weren't enough, there are many situations, such as minor traffic offenses that lead to catastrophic results, where judges may be hesitant to impose significant restitution. Add to that, the fact that the criminal process is by no means swift, by the time many victims realize that restitution will not make them whole, it becomes more difficult to find an attorney to help them obtain compensation through the civil court system.
I came across a case in the news the other day that seems to fit the pattern for the type of case where restitution will not provide justice for family members. According to media reports, a commercial truck a ran a stop sign at the intersection of FM and County Road in Martin County, Texas.
Normally this wouldn't be newsworthy, but after running this stop sign, the truck collided with a passenger vehicle driven by Christopher P.
Cortez, who died as a result of the accident. It is doubtful the there would be a victim impact statement for such a minor violation and equally unlikely that a judge would order restitution. In such a situation, waiting for the outcome of the criminal proceedings costs valuable time that can spent investigating the accident by an outside party and gathering evidence for use in a civil action. While restitution might make sense for victims of robbery, theft, and fraud, for families who've lost a loved one due to a "minor" traffic violation, like the family of Christopher P.
Cortez, restitution is probably a non-starter. Perhaps the biggest obstacle to obtaining restitution is the higher burden of proof in criminal cases. As many people are familiar with, a conviction in a criminal case requires that the government's case be proved beyond a reasonable doubt.
Without a conviction, victims have no hope of obtaining restitution. In short, the inability to recover all damages, a focus on punishment, the fact that the victim doesn't have an actual representative in the proceedings, the whims of a judge, and the higher burden of proof all conspire to ensure that victims rarely receive full compensation through criminal restitution. As mentioned before, civil cases offer victims the chance to obtain compensation, not restitution.
The difference between the two is stark. Whereas obtaining restitution is almost completely dependent on factors outside of a victim's control, such as whether the nature of the offense, the effectiveness of the prosecution, and the disposition of the judge in the case, victims have much greater control when they seek to pursue compensation through a lawsuit.
First, those who have been wronged or their family members select the attorney who works on their behalf. This may not sound like much, but judges and prosecutors have their own agenda's that don't always overlap with the victims' interests. A personal injury attorney's sole task is to pursue compensation for their clients.
This means that while a judge may have to consider the fairness of a sentence, balancing the needs for rehabilitating the perpetrator versus punishment, personal injury attorneys have no such conflict.
Further, seeking compensation is far more democratic. Rather than relying on the wisdom of a single individual the judge during the sentencing phase like restitution does, compensation is determined by a jury of ordinary people in the community.
While this can be a double-edged sword, in general, 12 jurors are much less likely to produce bizarre outcomes than a single, elected individual. A new resource center to help states improve their ability to effectively order, collect, disburse, and fulfill restitution sentences.
A package of criminal justice bills aiming to keep people with substance use disorders out of prison and improve community supervision and reentry supports has been introduced in the Kansas legislature for the session.
Not only is treatment a more cost-effective use of taxpayer dollars than prison, but it works. Compensation Programs. Key benefits of compensation Does not require an arrest or prosecution Guaranteed to pay full amount awarded based on payment guidelines to eligible people Provides payments after eligibility is confirmed and award amount determined.
Key benefits of restitution Covers all offense types Holds people who committed offenses accountable Pays for losses not covered by compensation. Additional Resources. Related Publications. See All. We look back at our year of creating… Read More.
Read More. New Center Offers Free Assistance to Improve Victim Restitution Processes A new resource center to help states improve their ability to effectively order, collect, disburse, and fulfill restitution sentences.
In providing services and assistance to victims, attention should be given to those who have special needs because of the nature of the harm inflicted or because of factors such as those mentioned in paragraph 3 above.
States should consider incorporating into the national law norms proscribing abuses of power and providing remedies to victims of such abuses. States should consider negotiating multilateral international treaties relating to victims, as defined in paragraph States should periodically review existing legislation and practices to ensure their responsiveness to changing circumstances, should enact and enforce, if necessary, legislation proscribing acts that constitute serious abuses of political or economic power, as well as promoting policies and mechanisms for the prevention of such acts, and should develop and make readily available appropriate rights and remedies for victims of such acts.
The core international human rights instruments. Universal human rights instruments. The International Bill of Human Rights.
Turn on more accessible mode. Turn off more accessible mode. Victims of crime 1. Access to justice and fair treatment 4. Restitution 8. Compensation
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