HOUSE OF REPRESENTATIVES

H.B. NO.

1561

TWENTY-NINTH LEGISLATURE, 2017

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO VICTIM RESTITUTION.

 

 

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

 


     SECTION 1.  The legislature finds that Act 139, Session Laws of Hawaii 2012, among other reforms, amended section 353-22.6, Hawaii Revised Statutes, to expedite the payment of court-ordered restitution to victims of crimes.  The Act made use of the fact that Hawaii inmates receive moneys in their individual inmate accounts and the department of public safety is responsible for the maintenance of those accounts.  More specifically, if an inmate owed unpaid restitution to a victim, the Act required the director of public safety, on behalf of the victim, to deduct twenty-five per cent of the total of all moneys earned, new deposits, and credits to the inmate's individual account.

     The legislature also finds that Act 231, Session Laws of Hawaii 2016, among other reforms, further amended section 353-22.6, Hawaii Revised Statutes, to clarify that the rate of deduction is required to be twenty-five per cent, notwithstanding any contrary law or order that established a rate of deduction less than twenty-five per cent.  The Act also amended section 706-646, Hawaii Revised Statutes, to clarify that while an inmate is in the custody of the department of public safety, restitution shall be collected pursuant to chapter 353, Hawaii Revised Statutes, and any court-ordered payment schedule shall be suspended.

     The legislature further finds however, that some courts have interpreted the twenty-five percent rate of deduction under section 353-22.6, Hawaii Revised Statutes, as a "ceiling" or maximum rate as opposed to a mandatory rate.  Although the amendments made by Act 231, Session Laws of Hawaii 2016, firmly establish a rate of deduction of twenty-five per cent when an inmate is in the custody of the department of public safety, even if that rate is not stated in the court order, a court order that states a rate of deduction lower than twenty-five percent can be a source of confusion for victims and inmates.

     The legislature believes that, because victims often suffer financial harm as a result of the crimes of perpetrators, payments of restitution to victims should be expedited, regardless of whether a criminal offender is in the custody of the department of public safety.  The legislature therefore finds that every offender who owes restitution to a victim should be ordered to repay the victim at a rate of twenty-five per cent of the offender's income until restitution has been paid in full.

     Accordingly, the purpose of this Act is to expedite the payment of restitution to victims by requiring restitution orders to:

     (1)  Require a defendant to submit to a payment schedule that requires the defendant, at minimum, to render payment no less than once every month, in an amount that is not less than twenty-five per cent of the defendant's gross monthly income from the previous month, until the victim has been reimbursed for the full amount of restitution ordered; and

     (2)  State specifically that during any time a defendant who owes a victim restitution is in the custody of the department of public safety, restitution shall be collected pursuant to chapter 353, Hawaii Revised Statutes, which includes the use of deductions from the defendant's account at the rate and in the manner established under section 353-22.6, Hawaii Revised Statutes, and any court-ordered payment schedule shall be suspended.

     SECTION 2.  Section 706-605, Hawaii Revised Statutes, is amended by amending subsection (7) to read as follows:

     "(7)  The court shall order the defendant to make restitution for losses as provided in section 706-646.  In ordering restitution, the court shall not consider the defendant's financial ability to make restitution in determining the amount of restitution to order.  [The court, however, shall consider the defendant's financial ability to make restitution for the purpose of establishing the time and manner of payment.]"

     SECTION 3.  Section 706-646, Hawaii Revised Statutes, is amended to read as follows:

     "§706-646  Victim restitution.  (1)  As used in this section, "victim" includes any of the following:

     (a)  The direct victim of a crime including a business entity, trust, or governmental entity;

     (b)  If the victim dies as a result of the crime, a surviving relative of the victim as defined in chapter 351;

     (c)  A governmental entity that has reimbursed the victim for losses arising as a result of the crime or paid for medical care provided to the victim as a result of the crime; or

     (d)  Any duly incorporated humane society or duly incorporated society for the prevention of cruelty to animals, contracted with the county or State to enforce animal-related statutes or ordinances, that impounds, holds, or receives custody of a pet animal pursuant to section 711-1109.1, 711-1109.2, or 711‑1110.5; provided that this section does not apply to costs that have already been contracted and provided for by the counties or State.

     (2)  The court shall order the defendant to make restitution for reasonable and verified losses suffered by the victim or victims as a result of the defendant's offense when requested by the victim.  The court shall order restitution to be paid to the crime victim compensation commission if 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 be made pursuant to section 706-651.

     (3)  In ordering restitution, the court shall not consider the defendant's financial ability to make restitution in determining the amount of restitution to order.  [The court, however, shall consider the defendant's financial ability to make restitution for the purpose of establishing the time and manner of payment.  The court shall specify the time and manner in which restitution is to be paid.  While the defendant is in the custody of the department of public safety, restitution shall be collected pursuant to chapter 353 and any court-ordered payment schedule shall be suspended.]  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.

     (4)  The court shall order a payment schedule regarding the restitution amount ordered pursuant to subsection (3).  The court's order, at minimum, shall require the defendant to render payment no less than once every month, in an amount that is not less than twenty-five per cent of the defendant's gross monthly income from the previous month, until the victim has been reimbursed for the full amount of restitution ordered; provided that the order shall also set forth the requirements of subsection (5).

     (5)  During any time the defendant is in the custody of the department of public safety:

     (a)  Restitution shall be collected pursuant to chapter 353, which includes the use of deductions from the defendant's account at the rate and in the manner established under section 353-22.6; and

     (b)  Any court-ordered payment schedule shall be suspended.

     [(4)] (6)  The restitution ordered shall not affect the right of a victim to recover under section 351-33 or in any manner provided by law; provided that any amount of restitution actually recovered by the victim under this section shall be deducted from any award under section 351-33."

     SECTION 4.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 5.  This Act shall take effect on July 1, 2017.

 

INTRODUCED BY:

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Report Title:

Victim Restitution; Collection

 

Description:

Clarifies that restitution collections that are made pursuant to chapter 353, Hawaii Revised Statutes, when a criminal defendant is in the custody of the department of public safety include deductions from the defendant's account at the rate and in the manner established pursuant to section 353-22.6, Hawaii Revised Statutes.  Requires a court-ordered restitution payment schedule to (1) set forth the foregoing requirements and (2) require, at minimum, monthly payments of 25% of the defendant's gross monthly income until restitution has been paid in full.

 

 

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