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Andrew Schultz
Andrew Schultz

Facts of Law : Criminal Restitution Isn't As Clear As We Think

Andrew Schultz
 June 18, 2022
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In any criminal case, a crime victim is entitled to “restitution,” the absolute right to be repaid for any financial losses suffered. This is a right protected in both our North Dakota Century Code, and our State Constitution.

In recent years, with the adoption of constitutionally-protected victim’s rights in Marsy’s Law, several issues regarding restitution have been litigated in our State Supreme Court. State law requires that restitution must be ordered in an amount that makes a victim whole again, financially. In 2018’s State v. Kostelecky, the Supreme Court reversed the trial court’s decision to award the cost of brand new equipment to replace significantly older equipment valued around nine times less. The restitution award was revised to reflect the cost of refurbished equipment, instead of brand new equipment.

In 2020’s State v. Pagenkopf, the State Supreme Court required a defendant to pay for damage to a wrecked vehicle, even though the same vehicle had been further damaged and totaled, and the insurance company had already paid out the totaled cost. Pagenkopf means that you have to pay for damage you cause, even if further damage happens later and is covered by insurance.

Those two cases were for damages actually incurred in a definite amount. However, in last month’s State v. Yellow Hammer, the Supreme Court affirmed a $95,000 restitution award to a car accident victim for a surgery that had not yet occurred, as an estimated value. The supporting exhibit was a physician’s progress note indicating that a further surgery would be required at a cost “approximately $95,000.” The physician based his estimate on a prior surgery. The question for the Court whether the true cost was “ascertainable.” Even though the estimate wasn’t from the billing department, and medical costs can fluctuate wildly depending on personnel, medication, time, and other resources, the Supreme Court approved it anyway.

At the end of the day, restitution is about requiring a defendant to pay for the crimes they’ve committed. But it’s a two-sided coin: If Yellow Hammer’s victim’s surgery costs more than what was ordered, the justice system will have failed the victim. If the surgery costs less, the system has failed Yellow Hammer. The coin must land perfectly on its rim, every time.

The Supreme Court’s case also opens a Pandora’s Box about other kinds of cases. For instance, a trauma victim has 10 schedule counseling appointments but doesn’t use them all. Or there’s a change in prognosis, or a victim doesn’t heal on the predicted time schedule. A defendant could be required to pay more than what was actually required, or a victim may not be fully compensated for their recovery.

Restitution is about compensating for loss, not disproportionate punishment or laying victims bare. For my part, I think these kinds of issues will have to be further litigated, and the Supreme Court may have missed a golden opportunity chance to sharpen the focus of victim’s rights and how they need to be proven in court.

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