The Journal of The DuPage County Bar Association

Back Issues > Vol. 27 (2014-15)

The New Illinois Constitutional Crime Victim Restitution Right: A Revolutionary Amendment?
By Jeffrey A. Parness

Before 1992, any crime victim restitution rights in Illinois were subject to General Assembly direction and, perhaps, some nonconstitutional common law developments.1 A 1992 Illinois constitutional amendment expressly recognized for crime victims “(t)he right to restitution,” though this right was only “as provided by law,” meaning continuing, and perhaps now exclusive, General Assembly direction.2 A 2014 Illinois constitutional amendment removed the “as provided by law” caveat as to the nature of the right3 while explicitly recognizing that a crime victim “has standing to assert” the restitution right “in any court exercising jurisdiction over the case,” albeit as a nonparty.4 Yet, the 2014 amendment left to the General Assembly the responsibility for defining crime “victims.”5 Further, the amendment largely left the victims to their own devises, since the 2014 restitution right is not to be “construed to alter the powers, duties, and responsibilities of the prosecuting attorney”6 and since the “court shall not appoint an attorney for the victim.”7 Yet the court is required to “promptly rule."8

Many new questions regarding crime victim restitution arise with the 2014 constitutional amendment. One involves the types of court proceedings in which there are exercises of relevant jurisdiction. Another involves how the roles of the trial judges in such proceedings will change when the new restitution rights are asserted. And a third involves how assertions of the (revolutionary?) new constitutional crime victim restitution right will alter the balance between the public and private interests in criminal case sentencing and related (e.g., civil asset forfeiture) matters.

Seemingly, there are at least some first impression American state constitutional questions under the 2014 amendments, as they are somewhat unique (in restitution and beyond).  Comparative American state constitutional crime victim restitution provisions will first be very briefly examined, followed by inquiries into the three noted questions. Lastly, there will be some thoughts on future Illinois crime victim restitution proceedings.

American State Constitutional Crime Victim Restitution Rights. About one half of American states have at least some explicit constitutional rights for crime victims,9 though not all include restitution.10 As to restitution, some require — as did Illinois until recently — General Assembly definitions both of an eligible victim and the nature of the right itself.11 While the Illinois constitution now expressly recognizes General Assembly authority to define “crime victims,” but not to provide “by law” for the restitution right,12 the Arizona constitution explicitly defines the victims entitled to “receive prompt restitution” from convicted criminals, 13 but leaves to the legislature “the authority” to “define, implement preserve and protect” this restitution right.14

Though some other state constitutions have comparable crime victim restitution rights, to date elsewhere there has been little exploration of the questions earlier raised as to relevant court proceedings; the altered roles of trial judges; and the balance between the public and private interests in criminal case sentencing and related proceedings.

Relevant Court Proceedings. As to where the Illinois constitutional crime victim restitution right might be asserted, clearly pending criminal cases were contemplated by the constitutional drafters, including both prejudgment and postjudgment criminal case proceedings. The Illinois restitution right accompanies other crime victim rights directly tied to criminal cases, like a “post-arraignment court proceeding” 15 and a proceeding “after arrest and conviction.”16 As with some of the other constitutional rights, seemingly the restitution right might be asserted at varying stages of a criminal case, not just at sentencing.

Restitution assertions during, or related to, plea bargaining seemingly would facilitate case resolution since many criminal defendants would wish to know of all the possible consequences of their guilty pleas. In Arizona, criminal case judges can initiate “settlement” discussion, which shall be preceded by conferrals between prosecutors and victims where the victims’ positions are then later relayed during the discussions.17 Restitution assertions may also be asserted outside of pending criminal cases. Exercises of other Illinois constitutional crime victim rights can occur outside criminal cases, as with “the right to communicate with the prosecution”18 and the “right to be treated with fairness”19 and “to be reasonably protected”20 throughout “the criminal justice process.” So, no pending criminal case is necessary. A restitution assertion might be considered, for example, during talks between state prosecutors and those who are potentially subject to criminal prosecution.

As well, restitution may be asserted in civil actions brought by victims against alleged or established criminals in either civil cases21 or in administrative crime fund recovery proceedings.22 Restitution may even be available in civil asset forfeiture actions brought by state agents against alleged or established criminals.23

Criminal Case Judges. In criminal cases, crime victims (as defined by statute) have constitutional restitution rights as nonparties which, when asserted, must be “promptly” ruled upon by criminal case judges.24 Since the “prosecuting attorney” is not constitutionally- compelled to aid in the exercise of these rights,25and crime victims may not be appointed an attorney,26 what judicial processes must be undertaken by judges so that rulings on restitution assertions are made “promptly”?

A few necessary processes are clear. Judges must help to facilitate crime victim restitution during criminal cases by establishing special local rules/customs for pro se presentations, as well as addressing how such assertions shall be undertaken by crime victim representatives, including paid and pro bono counsel (and perhaps non-attorneys, who may need to be specially authorized or licensed27). Guidelines seemingly are most needed for assertions at the hearings on possible guilty or stipulated pleas and on sentencing after conviction at trial. Crime victims must be notified of plea hearings.28 Whether or not victims attend, and therein assert their constitutional restitution rights, judges should there advise criminal defendants not only of the “minimum and maximum sentence prescribed by law,”29 but also of possible later crime victim restitution orders, as is done in North Dakota and Vermont.30

When Illinios judges participate in the preceding “plea discussions,” upon “request by the defendant and with the agreement of the prosecutor,”31 they should insure discussion of possible restitution occurs when the restitution right has been earlier asserted in some way, and occasionally raise the possibility of restitution even when there was no earlier assertion by the crime victim.32

Crime victim restitution agreements should not be limited in Illinois to settings where criminal charges result in guilty or stipulated pleas. In Illinois, crime victims are “defined by law” and should include victims of wrongs never fully prosecuted criminally. The Illinois constitutional restitution right should not depend upon conviction,33 or even a related criminal charge.34 Certainly, agreements on crime victim restitution can speak to uncharged crimes involving the same perpetrators and victims within the charged crimes. Judicial enforcement of such agreements can be supported by the rationales used, for example, when federal district courts agree to enforce settlements of unfiled claims (as with insurance) somewhat related to pending civil claims, often said to involve exercises of supplementary jurisdiction.35

Crime victims must also be given notice of sentencing hearings.36 Local court rules, if not statutes or Supreme Court rules, should address how crime victims can assert their restitution claims in advance of such hearings, as well as their roles — as nonparties37 (perhaps somewhat like lienholders) — in these hearings.

Balancing Public and Private Interests. Whether in a criminal or civil case wherein one is alleged to have acted in a criminal way, the resulting remedy required of one found responsible can involve the payment of money or the handover of other assets that can benefit the public at large, the victim harmed by the wrongful conduct, or both the public and victim. Public interest remedies include monetary fines in criminal cases and property forfeitures in civil cases.38 Private interest remedies include crime victim restitution, and perhaps other crime victim damages if such damages can extend beyond what is allowed via restitution (e.g., punitive damages in civil cases that are not considered restitutionary).

If a wrongdoer’s recoverable assets are limited, how should they be allocated? Should it depend on the nature of the wrongdoing, the type of public interest remedy pursued, the type of private remedial interest at stake, or whether the wrong was established via plea or trial? Outside Illinois there are specific allocation priorities. In California, crime victims with losses have a constitutional right to restitution from those convicted which “shall be ordered… regardless of the sentence or disposition imposed,” where “(a) ll monetary payments, monies and property collected from any person who has been ordered to make restitution shall be first applied to pay the amounts ordered as restitution to
the victim.”39

Conclusion. The 2014 amendments to the Crime Victims’ Rights provisions within the Illinois constitution’s Bill of Rights recognize a crime victim restitution right assertable at least within a criminal case, which requires a “prompt” ruling once asserted. This right demands greater judicial attention at both guilty pleas and sentencing hearings. It also challenges circuit judges to insure a fair allocation of a wrongdoer’s assets between public and private interests.

1 For a short history of Illinois crime victim monetary recovery rights in and outside of the Illinois constitution before 2014, see Jeffrey A. Parness, Laura Lee, and Karen Blouin, “Monetary Remedies for Victims During Illinois Criminal Cases,” 44 Valparaiso University Law Review 69, 73-87 (2009)(noting that in Illinois, The Statutory Bill of Rights for Victims and Witnesses of Violent Crimes of 1984 contained no restitution right).

2 Ill. Const. art. I, §8.1(a)(1992).

3 Ill. 2014).

4 For a short history of Illinois crime victim monetary recovery rights in and outside of the Illinois constitution before 2014, see Jeffrey A. Parness, Laura Lee, and Karen Blouin, “Monetary Remedies for Victims During Illinois Criminal Cases,” 44 Valparaiso University Law Review 69, 73-87 (2009)(noting that in Illinois, The Statutory Bill of Rights for Victims and Witnesses of Violent Crimes of 1984 contained no restitution right).

5 Ill. Const. art. I, §8.1(a)(2014).

6 Ill. Const. art. I, §8.1(b)(2014).

7 Ill. Const. art. I, §8.1(b)(2014).

8 Ill. Const. art. I, §8.1(b)(2014).
9 These rights are reviewed in Monetary Recoveries, supra note 4, at 821-31.

10 See, e.g., Alabama Const. art. I, §6.01 and Florida Const., art. I, §16. At times restitution is constitutionally noted, but not as a right. See, e.g., Alaska Const. art. I, §12 (“Criminal administration shall be based upon . . . restitution from the offender”).

11 See, e.g., Michigan Const., art. I, §24; Missouri Const. art. I, §32(1); Tennessee Const. art. I, §35; and Idaho Const. art. I, §22(7).

12 Ill. Const. art. I, §8.1(a)(2014).

13 Arizona Const. art. II, §2.1(A)(8).

14 Arizona Const. art. II, §2.1(D).
15 Ill. Const. art. I, §8.1(a)(5)(“right to be heard)(2014).

16 Ill. Const. art. I, §8.1(a)(9)(need to have “the safety of the victim and the victim’s family considered in denying or fixing the amount of bail”) (2014).

17 Arizona Rule of Criminal Procedure 17.4 (a).

18 Ill. Const. art. I, §8.1(a)(4)(2014).

19 Ill. Const. art. I, §8.1(a)(1)(2014).

20 Ill. Const. art. I, §8.1(a)(8)(2014).
21 Monetary Recoveries, supra note 4, at 841-2 (exploring civil cases presented by crime victims against crime perpetrators).

22 Id. at 842-50 (comparing American crime fund recovery laws).

23 See, e.g., Arizona Stat. §13-4311 (State’s Attorney shall apply the proceeds of property sold via a civil forfeiture “to compensate the injured person’s economic loss”).

24 Ill. Const. art. I, §8.1(b)(2014).

25 Ill. Const. art. I, §8.1(b)(2014).

26 Ill. Const. art. I, §8.1(b)(2014).

27 See, e.g., 725 ILCS 120/4.5(b)(3)(“victim advocate personnel” can be authorized to provide information on services available for victims of crime).

28 Ill. Const. art. I, §8.1(a)(3)(“right to timely notification of all court proceedings”).

29 Ill. Sup. Ct. R. 402(a)(2) (also information on the possible penalty “because of prior convictions”).

30 North Dakota Rule of Criminal Procedure 11 (b)(I) (no judicial acceptance of a guilty plea without personal notice of “the court’s authority to order restitution”) and Vermont Criminal Rule 11 (c)(2) (similar).

31 Ill. Sup. Ct. R. 402(d)(1). Compare Tennessee Criminal Procedure Rule 11 (c)(1) (“court shall not participate”) and Colorado  Rule of Criminal Procedure 11 (f)(4) (“The trial judges shall not participate in plea discussions”) to Idaho Criminal Rule 11 (f)(1) (“court may participate” in discussions of possible guilty pleas).

32 The Illinois constitution does not explicitly recognize crime victim participation rights in plea bargains. The seven American state constitutions that do so fail to provide “clear instructions as to how this right should be implemented and have no supporting case law. Elizabeth N. Jones, “The Ascending Role of Crime Victims in Plea-Bargaining and Beyond,” 117 West Virginia Law Review 100, 119-20 (2014).

33 Compare, e.g., South Carolina Const. art. I, § 24(A)(a) ( a crime victim has the right to “prompt and full restitution from the person or persons convicted”).

34 But compare People v. McKinley, 852 N.W. 2d 770, 776 (Mich. 2014) (Michigan statute read not to authorize the assessment of restitution based on uncharged conduct).

35 Comparably, the U.S. Supreme Court has recognized that federal law claims only subject to trials in federal district courts can nevertheless be settled, though unfiled, in factually related state civil cases. Matsushita Electric Industrial Co., Ltd. v. Epstein, 516 U.S. 367 (1996).

36 Ill. Const. art. I, §8.1(a)(3)(“right to timely notification of all court proceedings”)(2014).

37 Ill. Const. art. I, §8.1(b)(2014).

38 See, e.g., 725 ILCS 150/2 (“civil forfeiture of property” employed in certain illegal conduct involving controlled substances “will have a significant beneficial effect in deterring the rising incidence of the abuse and trafficking” of illegal drugs). See also State v. Alexander, 855 N.W. 2d 340, 346 (Minn. App. 2014) (criminal court orders convicted defendant to pay restitution to victim and “ to fully reimburse the public defender’s office”).

39 California Const. art. I, §28 (b)(13). See also California Penal Code §1202.4 (f)(with some exceptions, “in every case” where “a victim has suffered economic loss,” the court “shall require that the defendant make restitution to the victim,” with “full restitution” ordered unless the court “finds compelling and extraordinary reasons for not doing so”).

Professor Emeritus Je f f rey Parness teaches at the NIU College of Law, where he teaches a variety of civil procedure courses as well as administrative law. He taught for six years at the University of Akron School of Law prior to arriving at Northern Illinois University in 1982. He has been appointed a visiting professor at Washington and Lee University School of Law, Southern Illinois University School of Law, Case Western University School of Law, The John Marshall Law School (Chicago), and Loyola University Chicago School of Law. He served as law clerk to Judge James B. Parsons of the U.S. District Court for the Northern District of Illinois from 1974-1976. His primary areas of scholarship include federal and state civil procedure laws, maternity and paternity laws, the legal status of the unborn, state constitutional equality laws, crime victim restitution, witness abuse in civil litigation, and judicial rulemaking. The Chicago Lawyer has past named Professor Parness as among the 10 Best Law Professors in Illinois. Professor Parness rececived his B.A. from Colby College, and received his J.D. from The University of Chicago.

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