victim demands 100% restitution despite comparative negligence
by: Ryan • January 15, 2013 • no comments
A couple of weeks ago, the Oregon Supreme Court granted review of a case out of Yamhill County. The petitioner was the victim of the crime.
The press release states:
- Pursuant to ORS 147.539, petitioner J.P. (victim) has been granted review of a trial court order that denied her claim of :a violation of her rights under Article I, section 42, of the Oregon Constitution. She asserts that the trial court legally was required to impose the full amount of her economic damages as restitution, as part of the sentence of defendant Daniel Algeo for driving under the influence of intoxicants and assault IV.
- On review, the issue in this criminal case is whether the trial court erred in applying comparative negligence principles :under ORS 31.600 to apportion responsibility for the victim's injuries between the victim and the defendant, and then reducing the amount it ordered defendant to pay in restitution to the percentage of victim's economic damages attributed to the conduct of the defendant.
I must admit, I'm quite pleased by this petition for review. Not because I'm sympathetic to the argument that comparative negligence shouldn't be considered in awarding restitution. Rather,I believe it highlights, inadvertently, some of the issues raised by another case coming up next month, which is focused on whether restitution is a jury question. In other words, it's a great example of the way a criminal prosecution (or juvenile adjudication) becomes a way to circumvent not just the long-standing constitutional guarantee under Article I, section 17, but also all the statutory protections that are part of a civil suit.
Please, please, please, if you haven't done it already, read Rankin Johnson's post about that other case currently scheduled for argument with the Oregon Supreme Court. If there's any post from the past year that should impact what you argue at sentencing, it's this one.
