Restitution Generally
A. Nature and Purpose
An order or judgment for restitution is a sentence and properly considered part of the criminal proceeding for which the right to counsel attaches. State v. Phillips, 235 Or App 646, 652 (2010). Restitution is penal, not compensatory in nature and is part of criminal law, not a quasi-civil recovery device. State v. Dillon, 292 Or 172, 179-180 (1981).
Restitution is not intended to be equivalent or alternative to a civil award and its purpose is not to provide full compensation for all damages to victims. “Rather, the restitution is to be ordered only as it is relevant in correcting defendant’s behavior and as a step to accomplishing the traditional goals of sentencing such as rehabilitation of the defendant and deterrence to impress upon the defendant the seriousness and cost of his offense.” State v. Hart, 299 Or 128, 138 (1985) (emphasis added); State v. Dillon, 292 Or 172, 181 (1981).
B. Discretion of Court and Standard of Review
The court has no discretion in deciding whether or not to award restitution if it finds that a victim suffered economic damages. ORS 137.106(1) (“the court shall include one of the following”); State v. Thompson, 231 Or App 193, 196-97 (2009) rev. den., 349 Or 246 (2010). However, restitution under the hit and run statute, ORS 811.706, is at the court’s discretion. State v. Hval, 174 Or App 164, 179 (2001).
On appeal, judgments of restitution are reviewable for errors of law. State v. Noble, 231 Or App 185, 189 (2009).
C. Constitutional Issues
Hit and run restitution statute, ORS 811.706, does not violate federal due process, since awards authorized under the statute are for liquidated and readily measurable amounts and were not speculative or otherwise open-ended. State v. Hval, 174 Or App 164, 183-84 (2001).
There is a reasonable argument, currently on its way to the Court of Appeals, that restitution implicates the right to a civil jury trial in Article 1, section 17. The court has dismissed this argument in State v. Hart, 299 Or 128 (1985), State v. Dillon, 292 Or 172, 179-180 (1981), and State v. Hval, 174 Or App at 180-81, but the restitution statute at the time differed substantially from its current form. The court reasoned that the restitution statute:
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.
State v. Hval, 174 Or App at 180-81.
The current statute has none of those earmarks left, as the court is allowed to order a lower amount only if the victim agrees and the court is no longer allowed to consider rehabilitative and deterrent purposes in deciding whether or not to impose restitution or its amount. If these changes make restitution no longer a penal sanction, it has become a quasi-civil recovery device for which the right to a jury trial should attach. See this post on the issue under the juvenile restitution statute.
