In Criminal Defense Victim Restitution is Not Punishment, but it Sure Feels Like it! #CriminalAttorney

Brian StrongBrian Strong, Criminal Defense Attorney in ArizonaLeave a Comment

One of the fundamental principles of our criminal justice system is that one person should never be punished for the misdeeds of another. As a result, if an eighteen-year-old gets drunk and smashes several car windows with a baseball bat, his parents can never be sentenced to jail for the criminal damage caused by their adult son. And yet, as an Arizona criminal defense attorney, I have learned that many people are more troubled by the money they may have to pay than the time they could spend behind bars.

In the criminal courts, there are many costs a defendant could be ordered to pay. Fines, monthly probation fees, lab costs (for drug testing), and victim restitution are some of the more common financial assessments. Fines, like jail time, are considered pure punishment. Probation and lab fees, however, are imposed under the theory that the criminal courts should be at least partially funded by the offenders. Victim restitution, however, gets imposed for an entirely different reason.

The purpose of restitution is neither punishment nor user pay. The purpose of restitution is to make the victim(s) whole. This key legal distinction is why, in Arizona and several other states, parents of juvenile offenders can be court-ordered to pay for the damage done by their wayward teen. Obviously that distinction never makes the parents happy. Whenever a juvenile court judge orders mom and dad to pay a $3,000 repair bill, they always feel like they are being punished for the conduct of their foolish child.

The Arizona statute that makes parents financially responsible for their under-age kids is A.R.S. § 12-661. Parents are deemed liable even in cases where they could not possibly have anticipated their child’s delinquent act. Parental liability is not limited to property damage alone. Theft (e.g. shoplifting) and physical injuries (medical bills) are also listed as mandating parental payment. In spite of that, however, the statute does contain some important limitations:

  1. The child’s misconduct must be “malicious or willful,” not merely accidental.
  2. There is a $10,000.00 cap for “each act.”
  3. Liability is limited to the “parents or legal guardian having custody or control of the minor” when the event happened. Thus, if mom has sole legal custody and dad simply has visitation rights, dad cannot be held financially liable for misconduct that occurred while the child was in mom’s care.

If your teenage son or daughter is ever arrested the possibility of detention time or probation terms are not the only reasons to hire an attorney. Rather than hire a criminal defense attorney just for your teen, you might be better off hiring an attorney to represent your financial interests in a contested restitution hearing.

Attorney Profile: Brian D. Strong, Arizona Criminal Defense Attorney

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