Report Title:

Crime Victims; Restitution Required

Description:

Removes judicial discretion to mandate that defendants make restitution to victims. Provides that a defendant's financial ability to make restitution payments may be considered only in connection with establishing a restitution payment schedule. (SD1)

HOUSE OF REPRESENTATIVES

H.B. NO.

2320

TWENTY-SECOND LEGISLATURE, 2004

H.D. 1

STATE OF HAWAII

S.D. 1


 

A BILL FOR AN ACT

 

relating to victim restitution.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. Section 706-605, Hawaii Revised Statutes, is amended as follows:

1. By amending subsection (1) to read:

"(1) Except as provided in parts II and IV [of this chapter or in], section 706-647, and subsections (2) and (6) [of this section], and subject to the applicable provisions of this Code, the court may sentence a convicted defendant to one or more of the following dispositions:

(a) To be placed on probation as authorized by part II of this chapter;

(b) To pay a fine as authorized by part III and section 706-624 of this chapter;

(c) To be imprisoned for a term as authorized by part IV of this chapter; or

[(d) To make restitution in an amount the defendant can afford to pay; provided that the court may order any restitution to be paid to victims pursuant to section 706-646 or to the crime victim compensation special fund in the event that the victim has been given an award for compensation under chapter 351 and, if the court orders, in addition to restitution, payment of fine in accordance with paragraph (b), the payment of restitution and a compensation fee shall have priority over the payment of the fine; payment of restitution shall have priority over payment of a compensation fee; or

(e)] (d) To perform services for the community under the supervision of a governmental agency or benevolent or charitable organization or other community service group or appropriate supervisor; provided that the convicted person who performs such services shall not be deemed to be an employee of the governmental agency or assigned work site for any purpose. All persons sentenced to perform community service shall be screened and assessed for appropriate placement by a governmental agency coordinating public service work placement as a condition of sentence."

2. By amending subsection (6) to read:

"(6) The court shall impose a compensation fee upon every person convicted of a criminal offense pursuant to section 351-62.6; provided that the court shall waive the imposition of a compensation fee if it finds that the defendant is unable to pay the compensation fee. In addition, the court shall order the defendant to make restitution for losses as provided in section 706-646. In ordering restitution, the court shall consider the defendant's financial ability to make restitution payments only for the purposes of establishing a restitution payment schedule."

SECTION 2. Section 706-624, Hawaii Revised Statutes, is amended by amending subsections (1) and (2) to read as follows:

"(1) Mandatory conditions. The court shall provide, as an explicit condition of a sentence of probation[:] that the defendant:

(a) [That the defendant not] Not commit another federal or state crime during the term of probation;

(b) [That the defendant report] Report to a probation officer as directed by the court or the probation officer;

(c) [That the defendant remain] Remain within the jurisdiction of the court, unless granted permission to leave by the court or a probation officer;

(d) [That the defendant notify] Notify a probation officer prior to any change in address or employment;

(e) [That the defendant notify] Notify a probation officer promptly if arrested or questioned by a law enforcement officer; [and]

(f) [That the defendant permit] Permit a probation officer to visit the defendant at the defendant's home or elsewhere as specified by the court[.]; and

(g) Make restitution as provided under section 706-646.

(2) Discretionary conditions. The court may provide, as further conditions of a sentence of probation, to the extent that the conditions are reasonably related to the factors set forth in section 706-606 and to the extent that the conditions involve only deprivations of liberty or property as are reasonably necessary for the purposes indicated in section 706-606(2), that the defendant:

(a) Serve a term of imprisonment not exceeding one year in felony cases, and not exceeding six months in misdemeanor cases; provided that notwithstanding any other provision of law, any order of imprisonment under this subsection that provides for prison work release shall require the defendant to pay thirty per cent of the defendant's gross pay earned during the prison work release period to satisfy any restitution order. The payment shall be handled by the adult probation division and shall be paid to the victim on a monthly basis;

(b) Perform a specified number of hours of services to the community as described in section 706-605(1)(e);

(c) Support the defendant's dependents and meet other family responsibilities;

(d) Pay a fine imposed pursuant to section 706-605(1)(b);

[(e) Make restitution as specified in section 706-605(1)(d);]

[(f)] (e) Work conscientiously at suitable employment or pursue conscientiously a course of study or vocational training that will equip the defendant for suitable employment;

[(g)] (f) Refrain from engaging in a specified occupation, business, or profession bearing a reasonably direct relationship to the conduct constituting the crime or engage in the specified occupation, business, or profession only to a stated degree or under stated circumstances;

[(h)] (g) Refrain from frequenting specified kinds of places or from associating unnecessarily with specified persons, including but not limited to the victim of the crime, any witnesses, regardless of whether they actually testified in the prosecution, law enforcement officers, co-defendants, or other individuals with whom contact may adversely affect the rehabilitation or reformation of the person convicted;

[(i)] (h) Refrain from use of alcohol or any use of narcotic drugs or controlled substances without a prescription;

[(j)] (i) Refrain from possessing a firearm, destructive device, or other dangerous weapon;

[(k)] (j) Undergo available medical, psychiatric, or psychological treatment, including treatment for drug or alcohol dependency, and remain in a specified institution if required for that purpose;

[(l)] (k) Reside in a specified place or area or refrain from residing in a specified place or area;

[(m)] (l) Submit to periodic urinalysis or other similar testing procedure;

[(n)] (m) Satisfy other reasonable conditions as the court may impose;

[(o)] (n) Refrain from entering specified geographical areas without the court's permission; or

[(p)] (o) Refrain from leaving the person's dwelling place except to go to and from the person's place of employment, the office of the person's physician or dentist, the probation office or as may be granted by the person's probation officer pursuant to court order. As used in this paragraph, "dwelling place" includes the person's yard or, in the case of condominiums, the common elements."

SECTION 3. Section 706-646, Hawaii Revised Statutes, is amended by amending subsections (2) and (3) to read as follows:

"(2) The court [may] shall order the defendant to make restitution for losses suffered by the victim or victims as a result of the defendant's offense. The court [may] shall order restitution to be paid to the crime victim compensation commission in the event that the victim has been given an award for compensation under chapter 351. If the court orders payment of a fine in addition to restitution or a compensation fee, or both, the payment of restitution and compensation fee shall have priority over the payment of the fine, and payment of restitution shall have priority over payment of a compensation fee.

(3) In ordering restitution, the court shall consider the defendant's financial ability to make restitution payments only for the purpose of establishing a restitution payment schedule. Restitution shall be a dollar amount that is sufficient to reimburse any victim fully for losses including but not limited to:

(a) Full value of stolen or damaged property, as determined by replacement costs of like property, or the actual or estimated cost of repair, if repair is possible;

(b) Medical expenses; and

(c) Funeral and burial expenses incurred as a result of the crime."

SECTION 4. This Act shall not apply to any defendant in any criminal proceeding commenced prior to its effective date.

SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 6. This Act shall take effect upon its approval.