The fight for restitution for crime victims

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Tom Fiori doesn’t remember his near-fatal accident, but he lives its aftermath every day.

Last June, the father of two was hit by a teenage drunken driver during Senior Week in Ocean City. Fiori was crossing the street to get a sandwich. His head was cracked open and he needed four brain surgeries. He had to learn to walk again, still can’t move parts of his left side and can no longer work.

When the driver who hit him, Russell C. Maas, was sentenced last year in Worcester County, Fiori’s family had the prosecutor ask for tens of thousands in restitution payments from Maas. Even though Fiori’s wife, Debra, had brought all the necessary receipts for Tom’s medical care, the judge denied restitution, saying it was a matter for civil court.

“The system isn’t there to help you,” Tom Fiori said.

Crime victims like Fiori and their advocates say that even though restitution laws are on the books, actually getting prosecutors to ask for the restitution they want, and judges to award it, is challenging. They say that because victims are not officially parties to criminal proceedings, their financial needs are often dismissed.

“There’s no more clear-cut example of the conflict between the state and the victim,” said Steve J. Kelly, a Miles & Stockbridge P.C. associate who represents crime victims pro bono on restitution matters. “It’s a sticky little problem that prosecutors hate to talk about.”

As a result of a 2006 law allowing victims to appeal a trial court’s denial of restitution, a number of victims, including Fiori, now have cases pending before the Court of Special Appeals.

“Cases are percolating up because we have victims who have wanted restitution and the court hadn’t ordered it, and we’re now trying to get those cases into the court and hope the court will not only help those victims but also provide some published case law,” said Russell P. Butler, executive director of the Maryland Crime Victims’ Resource Center Inc.

A civil matter?

Maryland’s restitution law, contained in Criminal Procedure Article §11-6, says victims are entitled to payment from the defendant for losses sustained as a result of the crime, including medical and counseling bills, rehabilitation, funeral expenses, cash losses and lost wages.

If the victim requests restitution and presents “competent evidence” of losses and damages, he or she is presumed to be entitled to restitution. Judges “need not” order restitution if the defendant will not be able to pay, but they are not prohibited from doing so.

Restitution, unlike some civil judgments, is not dischargeable in bankruptcy. An offender’s wages may be withheld to pay restitution. Maryland also has a law that if someone who owes restitution wins the state lottery, the winnings are put toward the restitution debt.

Kelly said that despite the law, prosecutors and judges often suggest that victims sue defendants civilly to recover economic damages. That’s unrealistic, he said.

“If the prosecutor is thinking that the victim is going to be able to find a lawyer who will go out and bring a suit against an offender who is in jail for $5,000, it’s not going to happen,” Kelly said. “The victim is out of luck. Game over. You’re done.”

Kevin I. Goldberg, president of the Maryland Association for Justice Inc., which represents the plaintiff’s bar, said Kelly is right.

“For a judge to say to somebody, ‘I’m not going to enter a restitution order because you have access to the civil justice system,’ that sounds like an injustice to me, because no lawyer’s going to take a case for a few hundred dollars in medical bills or even a few thousand dollars in medical bills against an offender who’s probably not going to be able to pay the verdict,” said Goldberg, of Goldberg, Finnegan & Mester LLC.

Victims can represent themselves, but that still involves putting in a lot of work, paying a process server and taking time off to go to court, he said.

Scott Apple, an assistant state’s attorney in Calvert County, said victims should not have to sue civilly to recover what they lost in a crime. He prosecuted a contracting-without-a-license case where the victim was a woman who had hired the defendant, Matthew D. Marlowe, to put down gravel on her driveway. The gravel caused her garage to flood and she had to hire someone else to remove the gravel and redo the driveway.

Because Marlowe was unlicensed, the victim could not get a claim against him through the Department of Labor, Licensing & Regulation, Apple said. She was out $14,000 and Apple requested restitution, but Friday afternoon, that request was denied. Apple said the judge told him he did not think that he could legally enter a restitution order, and that the victim had a civil remedy.

Apple said the Maryland Crime Victims’ Resource Center may help the victim appeal.

Prosecutors’ dilemma

Prosecutors and some judges say they are committed to getting victims restitution, but that it is not a simple matter.

Baltimore County State’s Attorney Scott D. Shellenberger said his attorneys ask for restitution often, but they face a dilemma: Which is more important, punishing an offender with jail time or remunerating the victim’s losses?

“From the prosecutor’s point of view, the interesting thing is, when it’s a large loss, you’re torn between asking for jail time to get punishment but then knowing that when they’re in jail they can’t be working to pay restitution,” he said.

Retired Baltimore County Circuit Court Judge Dana M. Levitz said he has sentenced offenders to less jail time so they would be able to pay victims back more quickly.

He said that from 1985, when he joined the bench, to 2008, when he retired, prosecutors became more aware of victims’ rights and started asking for restitution more often. When a judge is presented with good evidence of the loss, the judge will likely grant restitution, Levitz said.

Retired Prince George’s County Circuit Court Judge Richard H. Sothoron Jr. said judges are concerned about getting victims monetary compensation, but they want to make sure they are not overstepping their bounds.

“I think the practicality is, courts have historically taken the position that they’re not in the collection business,” he said.

He said judges would be more willing to award restitution if prosecutors made sure all the necessary receipts were valid and in order before sentencing.

Margaret T. Burns, spokeswoman for Baltimore City State’s Attorney Patricia C. Jessamy, said her office requests restitution where practical, but in many cases, victims’ losses are not documented; victims may not bring the appropriate receipts to court, she said. Sometimes, victims don’t tell prosecutors about their losses, Burns said.

Lack of information

Russell Butler said that explanation doesn’t cut it, since many victims do not even know they are entitled to restitution, and they certainly don’t know what they have to bring to court to get it. Prosecutors are sometimes less than helpful in telling them about that right and fighting for restitution, he said.

Ian Stokes’ case is an extreme example.

Stokes was a student at Frostburg State University last year when he was beaten and robbed on campus by five men. He went to the hospital and was treated for a dislocated shoulder and a broken nose. The police officer who interviewed him told him to wait for a call from the Allegany County State’s Attorney’s Office to find out when to appear in court, said Stokes’ father, Mark Stokes.

That call never came, and it was only by looking up the case online that Mark Stokes found out that four of the men had pleaded guilty in exchange for probation before judgment. The prosecutor had never asked for restitution. The Stokes family would have liked to ask for about $2,500, the amount of Ian Stokes’ medical bills, Mark Stokes said.

When he found out what had happened, Stokes contacted the Maryland Crime Victims’ Resource Center. Butler’s group intervened to ask the court to reconsider the sentences and impose restitution, arguing that the victim’s right to notification of court proceedings and to restitution were violated. The judge said he did not think he could reopen the cases to impose an additional sentence, and the Stokes family has appealed.

Mark Stokes said they have since gotten paid by the Criminal Injuries Compensation Board, but that’s not the point.

“We honestly did not want the state of Maryland to pay for what these guys had cost,” he said. “Nobody has ever heard my son’s voice in any of this. Nobody has asked to hear his voice.”

“The worst part of it is, the anger has completely shifted away from the guys who beat my son to the ones who let them off the hook for reasons I can’t fathom,” he added.

Allegany County State’s Attorney Michael O. Twigg said Stokes’ case was handled poorly.

“[The prosecutor] pled the matter that day and didn’t inquire as to restitution, which probably in retrospect, hindsight being 20/20, he should have done,” he said.

The mistake resulted in a policy change: Twigg’s office no longer accepts pleas at preliminary hearing unless the victim is present or has had the opportunity to request restitution, he said. He said some of the men involved in the assault have been arrested since then, and he will investigate whether he can revoke their PBJs and ask for restitution this time around.

Collection woes

Even if a prosecutor requests restitution and a judge grants it, collecting it can be a nightmare, Steve Kelly said. If an offender is ordered to pay restitution as a condition of probation, the responsibility for collecting it falls to the Division of Parole and Probation.

“Parole and probation agents hate it because they feel like they’re almost becoming bill collectors,” Kelly said.

Patrick McGee, director of the division, said collecting is “problematic” because “nobody wants to pay anything.” In addition, agents are pursuing the twin goals of getting offenders to pay restitution and encouraging them to get back on their feet, which includes achieving financial stability. Those goals often conflict, he said.

Baltimore County Assistant State’s Attorney Adam Lippe, chief of the white-collar crime unit in Shellenberger’s office, said he asks for restitution in every case, but victims usually receive only 10 percent of their money by sentencing. That’s usually all they will ever see because post-prison monitoring and collections are ineffective, he said. Maryland has no mechanism to seize a defendant’s assets, such as the asset forfeiture process used by the federal government, he said.

Sometimes, restitution is uncollectible because the offender doesn’t have the money. Judges can’t create debtors’ prisons by jailing offenders for not paying when they don’t have the resources.

Kelly said a defendant’s ability to pay shouldn’t factor into a judge’s restitution decision because the judge has no way of knowing whether the offender will be able to pay someday.

Meg Garvin, executive director of the National Crime Victim Law Institute, agreed, saying that courts should award restitution without any regard to the defendant’s finances. That’s something to worry about when it comes time to collect, and besides, by ordering restitution, a judge validates a victim’s suffering, she said. Restitution awards send a message, whether that’s positive or negative.

“We tell victims something with the amount of restitution we award,” Garvin said. “If the court awards a rape victim six months of counseling restitution, there’s an implied statement that the victim should be healed within six months.”

‘Lost in the shuffle’

Tom Fiori knows his life will never be the same, but he is slowly starting to return to what he calls his “new normal.” He has recently been cleared to drive, which means he can shuttle his two boys to school. His brain damage means he can’t multitask anymore, though, and he needs to set timers for himself just to make sure he sees through simple tasks like doing the laundry.

He estimates that Maas’ insurance company paid him $50,000 gross, $34,000 net, but that does not begin to cover his expenses, he said. For starters, he used to earn more than $100,000 per year as a land broker, and now that income is gone.

He can’t understand why the man who hit him was not ordered to compensate him for the accident.

“You just feel like you got lost in the shuffle,” Fiori said. “The guy got 30 days in jail and a $1,000 fine, which seems pretty minimal to me. I’ve got to pay the lifetime consequences for this kid’s stupid mistake.”