Editor’s Note: a guest post by John Mason, Candidate for House District 80.
Is Justice Simply a Matter of Perspective? No.
Introduction – Criminal Justice Reform and Restitution
There’s been a lot a discussion about the massive criminal justice reform package that passed in 2017. This article will focus on just one aspect of the package that not too many people seem to know about, namely restitution. So let me set up a scenario that can easily happen on any given day.
You and your family are not at home. Someone breaks into your house and steals some jewelry, some personal possessions, and most of your electronics. They trip over something and crash into your wall, which in turn damages your drywall. This is probably a very frequent occurrence in certain parts of our state.
This scenario can be extended in a variety of ways that are more exotic: the intruder may have killed the family pet, the computer they stole may have personal information that they use to steal your identity, or they may even have started a fire (accidentally or deliberately) that causes significant damage to your house. These are certainly less likely to occur, but again, they are all certainly possible.
Part of the criminal justice reform package that became law was House Bill 249, which clearly states “Financial obligations that cause undue hardship on the offender should be waived, modified, or forgiven”.
Think about that: someone can break into your house, violate your personal space, take or destroy your possessions, harm or kill your pet, and even burn your house down, and have any court ordered restitution forgiven!
It’s certainly true that you make a claim with your homeowner’s insurance to replace your possessions, repair the damage, and rebuild the house, assuming that you’re not underinsured. They can never, of course, replace a beloved pet or restore your sense of violation.
You’re Distorting the Law, Aren’t You?
Wrong, I freely admit that victim compensation is only one aspect of restitution that a criminal might be required to pay. There are other fines and court courts that a criminal might be sentenced to pay or agree to as part of a plea bargain. That’s why I linked to the final version of the bill in the introduction. You did read it, didn’t you?
You didn’t? Article 883.2 of the final version is entitled “Restitution to victim” and Paragraph B is dispositive here:
B. The provisions of this Article do not apply if the court has determined, pursuant to the provisions of Article 875.1, that payment in full of the aggregate amount of all financial obligations imposed upon the defendant would cause substantial financial hardship to the defendant or his dependents. In such cases, the provisions of Article 875.1 shall apply.
It’s right there in black and white. If a judge decides that all of the restitution ordered causes “a substantial financial hardship” then there’s no special status for restitution due to the victim (that’s you, by the way). Instead all restitution can be waived.
Ramifications of No Restitution Necessary
The ramifications here are staggering. One judge can hear a case and decided that a criminal should have to pay you back for the damage he caused you personally. Another judge can come along after him and completely eliminate that part of the decision by forgiving the restitution!
If you are behind on your car payment and your credit cards, you have to go to a federal bankruptcy court. Student loans can’t generally be forgiven by a federal bankruptcy court (there are a few very rare exceptions), but a convicted felon can have a state judge waive his restitution if it would cause a hardship.
Can you believe that, folks? Okay, okay, I know you can believe it, since most of us don’t put anything past our politicians, so let me ask a different question? Do you think this is proper? Is this right? Doesn’t it seem like the criminal is receiving better treatment than you are?
What if, because of flooding or theft or some other reason, you’ve had to make multiple claims on your homeowner’s policy, so they raise your premium? You will have to pay more for insurance because someone broke into your home, stole and destroyed your possessions, and then had his or her debt forgiven by a judge! How does this make you feel?
How Did This Happen? More Rhinoceri?
Yes, rinoceri is the plural of rhinoceros, although some older sources still use rhinoceroses. Look it up yourself.
Let’s be perfectly clear. 40 of the 41 Democrats that cast a vote voted for this bill, with 2 Democrats not voting. 5 Republicans missed the vote. When seven legislators skip a vote, that should be a red flag. 28 Republican voted yes, including my opponent Polly Thomas. 26 Republicans voted no. This is why I repeatedly harp on the difference between a Republican and a Conservative Republican. There were a lot of RINOs (Republicans In Name Only) that crossed the aisle and voted with the Democrats. Are you happy that they did? I suspect that most people that live in my district would say no.
You Can’t Fool Me! They Fixed This!
That depends on your definition of “fixed”. It is true that in the 2018 Regular Session, HB 111, Article 875.1(D)(1)(a) clearly states that the court can “(a) Waive all or any portion of the financial obligations, except for any financial obligation designated as restitution due to a victim”. So clearly legislators were aware of this problem and remedied it.
Except this bill didn’t pass. It died in committee and never made it to the Governor’s desk. Even worse, it wouldn’t matter if it had been signed into law. Keep reading the same section. There is a provision that allows the criminal to have his restitution waived if his financial circumstances change and it becomes a “substantial financial hardship”.
This scenario looks at how the victim is treated and how the criminal is treated. Most conservatives think the victim’s rights should be at least as important as criminal’s rights. We can see that, at least in the hypotheticals I’ve proposed, the criminal gains opportunities that his victim just doesn’t have. Compassion for a criminal is one thing. Putting the criminal ahead of the victim is quite another. Jeff Landry and John Kennedy, both of whom opposed the 2017 criminal justice reform package know this instinctively, as do most conservatives, but it’s a lesson that Polly Thomas still needs to learn.