State v. Hart

• Decision Date: 07 May 1985
• Citation: 299 Or. 128,699 P.2d 1113
• Parties: STATE of Oregon, Respondent on review, v. Douglas Leland HART, Petitioner on review. TC C83-05-32325; CA A31581; SC S31362.
• Court: Oregon Supreme Court

Page 1113

699 P.2d 1113

299 Or. 128

STATE of Oregon, Respondent on review, v. Douglas Leland HART, Petitioner on review.

TC C83-05-32325; CA A31581; SC S31362.

Supreme Court of Oregon In Banc.

Argued and Submitted March 7, 1985.

Decided May 7, 1985.

[299 Or. 129-A] Ernest E. Estes, Deputy Public Defender, Salem, argued the cause for petitioner on review. With him on the petition for review was Gary D. Babcock, Public Defender, Salem.

Brenda J. Peterson, Asst. Atty. Gen., Salem, argued the cause for respondent on review. With her on the response to the petition for review were Dave Frohnmayer, Atty. Gen., James E. Mountain, Jr., Sol. Gen., and Stacia E. Reynolds, Certified Law Student, Salem.

JONES, Justice.

Defendant was convicted of assault in the second degree and sentenced to a 10-year term of imprisonment. Defendant was also ordered to pay restitution in the amount of $224,462.80 for past and future expenses related to injuries the victim suffered due to defendant's criminal conduct. The Court of Appeals affirmed without opinion both defendant's assault conviction and the restitution order, 70 Or.App. 731, 690 P.2d 533. Defendant raises both state and federal constitutional challenges to Oregon's restitution statutes.

THE FACTS AND PROCEEDINGS

Defendant was charged with the crime of assault in the second degree. Defendant waived his right to a jury trial and requested a trial on stipulated facts. The trial court found defendant guilty of second degree assault by knowingly causing severe physical and mental injuries to the victim, defendant's 18-month-old son. The injuries included permanent paralysis of the left side of the victim and permanent brain damage.

At the sentencing hearing, Susan Wilson, the victim's Children's Services Division (CSD) caseworker, testified regarding the cost of past and future expenses necessary for the treatment of the victim. These expenses were directly related to the victim's injuries caused by the defendant's assault.

The court sentenced defendant to 10 years' imprisonment with the requirement that he serve a minimum of five years before becoming eligible for parole. The court also continued the sentencing hearing, at defendant's request, for a hearing The court ordered defendant to pay restitution to CSD, a state agency responsible for the victim's care, in the amount of $224,462.80 at the rate of not less than $100 per month commencing 60 days after defendant's release from custody. The court found that $224,462.80 was the reasonable value of past and future expenses to be incurred by CSD during the childhood of the defendant's son. The court also found that the defendant had the ability to meet his $100 monthly instalment payments as fixed by the restitution order. ¹ Defendant has been employed over the years in millwork and electronics.

relating to restitution. The defendant requested a jury for the restitution hearing. The court denied the request and proceeded under ORS 137.106 which sets forth the procedure for such hearings. At the restitution hearing, following Ms. Wilson's testimony and while she was still available for cross-examination of the amounts of restitution requested, the court received in evidence a report from Meredith Morrison, Victim Assistant, a staff member of the District Attorney for Multnomah County, setting forth incurred and future medical and foster care expenses as well as future special educational expenses for the victim totaling $224,462.80.

RESTITUTION AS A CRIMINAL SENTENCING SANCTION

An introduction in a publication of the National Institute of Justice, "Compensating Victims of Crime: An Analysis of American Programs" (1983), reports:

"In a wide variety of societies throughout history, restitution has been a central principle of criminal law. Failure to make restitution could result in retributory punishment of the offender by the victim or the victim's kin group. Over time, as the power of governments increased, the state sought to obtain the sole power of retribution in order to reduce the violence associated with citizens 'taking the law into their own hands.' * * * " (Footnote omitted.)

See also Edelhertz and Geiz, Public Compensation to Victims of Crime (1974); Carrow, Crime Victim Compensation: Program Model (U.S. Government Printing Office 1980); and Hoelzel, A Survey of 27 Victim Compensation Programs, 63 Judicature 10 (1980).

Some 20 years ago, Professor Marvin Wolfgang commented in a Minnesota Law Review article about the change in sanctions from restitution to fines:

"Gradually the social group began to take charge of punishment, and wrongs came to be regarded as injuries to the group or to the state. The king claimed a part of this [restitution] payment or an additional payment for the participation of the state in the trial and for the injury done to the state by the disturbance of the peace. About the twelfth century the victim's share began to decrease greatly * * * until finally the king took the entire payment.

"Thus, the right of the victim to receive compensation directly from the one who caused him personal harm in an assault was transferred to the collective society where it remains to this day. * * * " Wolfgang, Victim Compensation in Crimes of Personal Violence, 50 Minn L Rev 223, 228 (1965).

A recent Harvard Law Review Note echoed the historical fact that there is nothing new about restitution as a sentencing sanction and that restitution as a sanction is being resurrected throughout the country. The author noted that far from being a novel approach to sentencing, restitution has been employed as a punitive sanction " * * * The primary purpose of such restitution was not to compensate the victim, but to protect the offender from violent retaliation by the victim or the community. It was a means by which the offender could buy back the peace he had broken. As the state gradually established a monopoly over the institution of punishment, and a division between civil and criminal law emerged, the victim's right to compensation was incorporated into civil law. Although this development led to a decline in the use of restitution as a form of punishment, restitution continued to be available on a limited basis in the Anglo-American criminal system. Many of the earliest penal codes in the United States included restitution provisions, and in 1913 the Supreme Court, in Bradford v. United States, [228 US 446, 33 S Ct 576, 57 L Ed 912 (1913) ], sanctioned restitution as a condition on a pardon. By providing for restitution in the penal sections of state codes and authorizing it as a sentencing option in addition to fines or imprisonment or as a condition on parole or probation, today's legislatures have preserved restitution as a criminal penalty." Note, Victim Restitution in the Criminal Process: A Procedural Analysis, 97 Harv L Rev 931, 933-34 (1984) (footnotes omitted).

                throughout history.  In ancient societies, before the conceptual separation of civil and criminal law, it was standard practice to require an offender to reimburse the victim or his family for any loss caused by the offense. 2  The author wrote
                

THE OREGON RESTITUTION STATUTES

In 1977, the state legislature enacted the present restitution statutes. Or. Laws 1977, ch. 371, §§ 1, 2, 6, 7. ORS 137.106 provides that a defendant may be required to pay restitution to crime victims:

"(1) When a person is convicted of criminal activities which have resulted in pecuniary damages, unless the presentence investigation report contains such a presentation, the district attorney shall investigate and present to the court, prior to or at the time of sentencing, evidence of the nature and amount of such damages. In addition to any other sentence it may impose, the court may order that the defendant make restitution to the victim.

"(2) In determining whether to order restitution which is complete, partial or nominal, the court shall take into account:

(a) The financial resources of the defendant and the burden that payment of restitution will impose, with due regard to the other obligations of the defendant;

(b) The ability of the defendant to pay restitution on an installment basis or on other conditions to be fixed by the court; and

(c) The rehabilitative effect on the defendant of the payment of restitution and the method of payment.

"(3) If the defendant objects to the imposition, amount or distribution of the restitution, the court shall at the time of sentencing allow the defendant to be heard on such issue."

ORS 137.103 defines "criminal activities," "pecuniary damages," "restitution" and "victim":

"(1) 'Criminal activities' means any offense with respect to which the defendant is convicted or any other criminal conduct admitted by the defendant.

"(2) 'Pecuniary damages' means all special damages, but not general damages, which a person could recover against the defendant in a civil action arising out of the facts or events constituting "(3) 'Restitution' means full, partial or nominal payment of pecuniary damages to a victim. Restitution is independent of and may be awarded in addition to punitive compensation awarded under ORS 137.101.

the defendant's criminal activities and shall include, but not be limited to, the money equivalent of property taken, destroyed, broken or otherwise harmed, and losses such as medical expenses and costs of psychological treatment or counseling.

"(4) 'Victim' means any person whom the court determines has suffered pecuniary damages as a result of the defendant's criminal activities; 'victim' shall not include any coparticipant in the defendant's criminal activities." ³

The present restitution statutes were enacted as a response to this court's interpretation of a former restitution statute, ORS 137.540(10), in State v. Stalheim, 275 Or. 683, 552 P.2d 829 (1976). ⁴ Former ORS 137.540(10), passed by the legislature in 1969, authorized a sentencing court to impose restitution only as a...