A Criminal Defense Lawyer’s Perspective of Michigan Victim’s Rights Laws: Has the pendulum swung too far?

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When a person commits a crime that involves a victim, a number of laws apply that provide the victim with several rights. Some of these rights allow for the victim to collect restitution, speak at sentencing, be afforded a victim’s rights advocate and confer with the prosecutor. In every respect, these are important rights.

Article 1, Section 24 of Michigan’s Constitution
provides as follows:

Crime victims, as defined by law, shall have the following rights, as provided by law:

  • The right to be treated with fairness and respect for their dignity and privacy throughout the criminal justice process.
  • The right to timely disposition of the case following arrest of the accused.
  • The right to be reasonably protected from the accused throughout the criminal justice process.
  • The right to notification of court proceedings.
  • The right to attend trial and all other court proceedings the accused has the right to attend.
  • The right to confer with the prosecution.
  • The right to make a statement to the court at sentencing.
  • The right to restitution.
  • The right to information about the conviction, sentence, imprisonment, and release of the accused.

Michigan’s Constitution gives powerful rights to a crime victim which can mean that a victim can block a plea agreement or have an impact on sentencing. Courts and prosecutors must abide by a rigid set of rules to include the victim in the criminal process and make an inquiry regarding the victim’s losses or injuries. Some courts utilize a checklist to insure that the victim’s rights are protected. In many cases, the victim can actually be sympathetic to the defense. It always helps when the victim does not obstruct the plea bargaining process and does not ask for jail or other unjustified harsh punishment at the time of sentencing.

However, as a criminal defense lawyer, it is far better to represent someone when a victim is not involved or when a victim does not take a position against the defense with respect to the plea bargain or sentence. The worse case scenario occurs when an alleged victim acts overly victimized, exaggerates a loss, requests inflated or spurious restitution or actually savors the drama of criminal court proceedings. In situations such as these, most judges know when a victim is seeking punishment that is cruel or is just taking advantage of the system. Unfortunately, some judges will give the victim too much latitude which makes the entire criminal process difficult for criminal defense lawyers.

Restitution
a. is a good idea b. is abused by victims c. involves a flawed process d. all of the above

Another vital tool that has been afforded to victims is the ability to request restitution at the time of sentencing and thereafter. A restitution hearing can be held to verify or contest a restitution claim. A person, business entity or third party (such as an insurance company), that suffers a loss because of the defendant’s conduct can request restitution. Michigan’s restitution statute and laws give the victim and the judge numerous powers including:

  • When sentencing a defendant, the court shall order defendant to make full restitution to any victim of defendant’s course of conduct.
  • Court must not consider defendant’s ability to pay.
  • Restitution may include any individual or entity that suffers direct physical or financial harm as a result of an offense. Insurance company as a victim.
  • Restitution may include any victims of the defendant’s course of conduct even though the losses are not attributable to the factual foundation of the charge that resulted in the conviction.
  • A co-defendant or co-conspirator may be held jointly held liable for the entire amount of the loss.
  • A defendant who plead guilty to home invasion was properly ordered to pay restitution for damage caused by accomplices who caused a fire after defendant left the premises.
  • If conduct causes serious bodily injury, serious impairment of bodily function or death, court may order triple restitution.
  • Victim’s loss may include prejudgment interest.

Restitution is commonly addressed at the time of sentencing. In my opinion, it is a flawed process because at the same time that the defendant is asking for a lenient sentence; the victim is asking for compensation. Whenever money is involved, most defendants that have the wherewithal will pay when they feel that it will appease a victim or save them from jail or prison. This usually means that the defendant usually consents to restitution which is rarely questioned by the prosecutor or judge assigned to the case. I have seen more than my fair share of abusive restitution claims where a victim is allowed to profit at the expense of a defendant who is facing incarceration.

Case 1: The victim was seeking restitution in a case where the defendant was charged with home invasion. The victim had old photographs of jewelry and recent appraisals based upon the old photographs to seek and obtain substantial restitution. She did not have any receipts or any recent documentation or photographs. In some of the photographs, she was wearing the jewelry but in others, she was not. There was no way to know whether she really ever owned the jewelry or the real value.

Case 2: A business entity claimed several thousands of dollars in accounting costs to investigate a defendant charged with embezzlement. There was no way to prove or disprove whether the accounting costs were actually necessary or just linked to this case.

Case 3: Co-defendants were convicted of taking equipment from a facility. The equipment was recovered. Although the equipment was old and in need of repair, the victim claimed and received in excess of $20,000.00 restitution for alleged damage to the equipment.

Civil Lawsuit or Criminal Restitution Hearing?

In my opinion, it was a far better system when a victim of a crime was required to file a civil lawsuit for damages arising out of a criminal offense. In civil lawsuits, the aspect of criminal punishment does not exist. A civil lawsuit is not based upon emotion, sympathy or the “hang em high” mentality that exists in criminal cases. A jury trial is permitted in civil proceedings and there is a process to establish or refute damages which includes depositions, discovery, expert witnesses and motion practice to refine the case. The prosecutor and victim rights advocate do not exist in the civil process and the judge does not have to placate a victim based upon the politics or media exposure which is more prevalent in criminal cases. The civil lawsuit, or civil process, is designed to require a party to prove a loss by verifiable evidence. Whereas, in the criminal arena judges and prosecutors may yield to the “get tough on crime” philosophy which may have an influence on decisions regarding restitution.

The criminal process is not designed to deal with restitution or damages claims efficiently and fairly. When a restitution claim is asserted, there is nobody in the criminal process that is likely to give credence to the defendant or cast aspersion on a victim.
Prosecutors and judges may raise their eyebrows when faced with incredulous restitution claims but neither will rarely put a victim’s integrity in dispute. The odds are in favor of the victim since it is assumed the accused in the criminal process is lying and the victim must be telling the truth.

When confronted with restitution claims, we make recommendations to our clients on a case by case basis. There may be situations when we recommend settlement of an allegedly inflated restitution claim. Our recommendation may be based upon the economics or legal fees associated with a long drawn out restitution hearing. In addition, the payment of restitution, or making a victim whole, is often viewed favorably by the prosecutor and judge.