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Juveniles, Restitution and Jury Trials

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by: Ryan • March 25, 2011 • no comments

The substantive portions of this post are almost entirely taken from a brief by Christa Obold-Eshleman. I did not think they could be improved upon. The portions that might sound slightly less than professional, those are mine.

A person - juvenile or adult - has a right to a jury trial in a civil suit, under Article I, section 17. Does the imposition of restitution without a jury trial violate that provision?

Despite the headline, this issue applies to adults as well as juveniles.

The Oregon constitutional right to a jury trial applies to the determination of the amount of damages in a civil action. Lakin v. Senco Products, Inc., 329 Or 62, 73-74, 987 P2d 463, 470 (1999). In the past, Oregon courts have found that restitution proceedings in criminal proceedings were not civil in nature, and thus did not fall under Article I, Section 17. See, e.g., State v. Dillon, 292 Or 172, 179-80, 637 P2d 602 (1981) (statutory analysis only); State v. Hart, 299 Or 128, 699 P2d 1113 (1985); State v. Hval, 174 Or App 164, 25 P3d 958 (2001). The juvenile code restitution scheme has never been analyzed in reference to Article I, Section 17, though the analysis related to the criminal code is instructive.

In State v. Hval, the Court of Appeals analyzed the history and purpose of the restitution statutes in the Criminal Code, and concluded that "[t]he legislative history makes clear that the statute's purposes are penal, not compensatory. Thus, restitution must be understood as an aspect of criminal law, not as a quasi-civil recovery device." 174 Or App at 175 (quoting State v. Dillon, 292 Or 172, 179-80, 637 P2d 602 (1981). This court explained that an award of restitution:

has all the earmarks of a penal sanction * * *: It is discretionary with the court, both in its imposition and its amount; the person who will receive the award does not receive it as a matter of right, nor will that person necessarily be compensated in full; and it is imposed as an aspect of a defendant's sentence, to serve rehabilitative and deterrent purposes. Given the penal function of the award * * *, defendant was not entitled to a civil jury trial on the issue of the imposition and amount of the award.

174 Or App 180-81 (citing Dillon, 292 Or at 178-79; State v. Hart, 299 Or 128, 139, 699 P2d 1113 (1985)).

That was then. This is now. The above factors are no longer present in the juvenile court restitution scheme.

First, at the time of Hval, restitution was an aspect of the defendant's sentence within the court's sentencing discretion. The trial courts were, therefore, as with any other form of sentence, to consider the purposes of the criminal code in determining proper disposition. 174 Or at 179; see also ORS 419C.411 (listing factors the juvenile court "shall consider" in determining disposition of a case).

Trial courts no longer have sentencing discretion in determining amounts of restitution, however. The Oregon Constitution was amended in 1999 to include that "victims in all prosecutions for crimes and in juvenile court delinquency proceedings" have "[t]he right to receive prompt restitution from the convicted criminal [or youth offender] who caused the victim's loss or injury." Or Const Art. I, Sec. 42 (as amended by House Joint Resolution 87 (1999), adopted at election Nov. 2, 1999). Since then, the corresponding statutes have also been amended to create a right to restitution for victims. In juvenile court, the purpose of the award of restitution is now listed as distinct from that of the rest of the juvenile justice system, and is not discretionary:

It is the policy of the State of Oregon to encourage and promote the payment of restitution and other obligations by youth offenders as well as by adult offenders. In any case within the jurisdiction of the juvenile court pursuant to ORS 419C.005 in which the youth offender caused another person any physical, emotional or psychological injury or any loss of or damage to property, the victim has the right to receive prompt restitution. * * * * If the court finds from the evidence presented that a victim suffered injury, loss or damage, in addition to any other sanction it may impose, the court shall: (A) Include in the judgment a requirement that the youth offender pay the victim restitution in a specific amount that equals the full amount of the victim's injury, loss or damage as determined by the court * * * *.

ORS 419C.450(1)(a).

No longer is "a damage award under the statute [] not available as a matter of right to the person who incurs a compensable loss of injury." Hval, 174 Or App at 179 (emphasis added). Rather, the right of the victim to receive compensation is absolute, without exception. It is the only part of the disposition in which the judge may not consider the factors otherwise required or optional under ORS 419C.411(3).

Another basis of the opinion in Hval was that the defendant could raise lack of ability to pay, as a consideration for the amount of award of restitution. In fact, this court stated that in determining the amount of an award, the trial court "must consider defendant's financial circumstances as a factor." 174 Or App at 180 (citing State v. Hart, 329 Or 140, 147-48, 985 P2d 1260 (1999); State v. Edson, 329 Or 127, 134-35, 985 P2d 1253 (1999)). This factor no longer exists, as the court "shall" award the "full amount" of the victim's loss. ORS 419C.450(1)(a).

None of the "earmarks of a penal sanction" cited by the court in Hval, therefore, are now present in the juvenile code restitution scheme. See 174 Or App at 180-81. Restitution is not discretionary in imposition or amount; the victim has an absolute right to an award of full compensation; and its imposition is required "to ensure that a fair balance is struck between the rights of crime victims and the rights of criminal defendants." Or Const. Art. 1, Sec. 42(1). The conclusion that follows, therefore, is that since restitution no longer have the most distinctive earmarks of penal sanctions, they are now, in fact, "quasi-civil recovery devices." See Dillon, 292 Or at 179-80.

Note that the new constitutional provision does not say anything one way or another about the right (or lack thereof) to a jury trial. The guarantee of a jury trial in determining restitution does not in any conflict with the victim's rights to be compensated promptly.