What is restitution? When can it be imposed? What is a compensatory fine? When can it be imposed?
Wikipedia explains the difference between restitution and compensation as follows:
The law of restitution is the law of gains-based recovery. It is to be contrasted with the law of compensation, which is the law of loss-based recovery. Obligations to make restitution and obligations to pay compensation are each a type of legal response to events in the real world. When a court orders restitution it orders the defendant to give up his/her gains to the claimant. When a court orders compensation it orders the defendant to pay the claimant for his or her loss.
Oregon Restitution Laws
Oregon has codified restitution law into ORS 137.106, which provides as follows:
(1)(a) When a person is convicted of a crime, or a violation as described in ORS 153.008 (Violations described), that has resulted in economic damages, the district attorney shall investigate and present to the court, at the time of sentencing or within 90 days after entry of the judgment, evidence of the nature and amount of the damages. The court may extend the time by which the presentation must be made for good cause. If the court finds from the evidence presented that a victim suffered economic damages, in addition to any other sanction it may impose, the court shall enter a judgment or supplemental judgment requiring that the defendant pay the victim restitution in a specific amount that equals the full amount of the victim’s economic damages as determined by the court. The lien, priority of the lien and ability to enforce the specific amount of restitution established under this paragraph by a supplemental judgment relates back to the date of the original judgment that is supplemented.
(b) Notwithstanding paragraph (a) of this subsection, a court may order that the defendant pay the victim restitution in a specific amount that is less than the full amount of the victim’s economic damages only if:
(A) The victim or, if the victim is an estate, successor in interest, trust or other entity, an authorized representative of the victim consents to the lesser amount, if the conviction is not for a person felony; or
(B) The victim or, if the victim is an estate, successor in interest, trust or other entity, an authorized representative of the victim consents in writing to the lesser amount, if the conviction is for a person felony.
(c) As used in this subsection, “person felony” has the meaning given that term in the rules of the Oregon Criminal Justice Commission.
(2) After the district attorney makes a presentation described in subsection (1) of this section, if the court is unable to find from the evidence presented that a victim suffered economic damages, the court shall make a finding on the record to that effect.
(3) No finding made by the court or failure of the court to make a finding under this section limits or impairs the rights of a person injured to sue and recover damages in a civil action as provided in ORS 137.109 (Effect of restitution order on other remedies of victim).
(4)(a) If a judgment or supplemental judgment described in subsection (1) of this section includes restitution, a court may delay the enforcement of the monetary sanctions, including restitution, only if the defendant alleges and establishes to the satisfaction of the court the defendant’s inability to pay the judgment in full at the time the judgment is entered. If the court finds that the defendant is unable to pay, the court may establish or allow an appropriate supervising authority to establish a payment schedule, taking into consideration 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. The supervising authority shall be authorized to modify any payment schedule established under this section.
(b) As used in this subsection, “supervising authority” means any state or local agency that is authorized to supervise the defendant.
(5) If the defendant objects to the imposition, amount or distribution of the restitution, the court shall allow the defendant to be heard on such issue at the time of sentencing or at the time the court determines the amount of restitution.
(6)(a) At least 10 days prior to the presentation described in subsection (1) of this section, the district attorney shall
(A) Disclose to the defendant the names of any witnesses that may be called during the presentation; and
(B) Provide the defendant with copies of, or allow the defendant to inspect, any exhibits that will be used or introduced during the presentation.
(b) If the court finds that the district attorney has violated the requirements of this subsection, the court shall grant a continuance to allow additional time for preparation upon request of the defendant. Any additional time granted under this paragraph may not count toward the 90-day time limitation described in subsection (1) of this section.
Oregon Compensatory Fine Laws
ORS 137.101 provides as follows:
(1) Whenever the court imposes a fine as penalty for the commission of a crime resulting in injury for which the person injured by the act constituting the crime has a remedy by civil action, unless the issue of punitive damages has been previously decided on a civil case arising out of the same act and transaction, the court may order that the defendant pay any portion of the fine separately to the clerk of the court as compensatory fines in the case. The clerk shall pay over to the injured victim or victims, as directed in the court’s order, moneys paid to the court as compensatory fines under this subsection. This section shall be liberally construed in favor of victims.
(2) Compensatory fines may be awarded in addition to restitution awarded under ORS 137.103 to 137.109.
(3) Nothing in this section limits or impairs the right of a person injured by a defendant’s criminal acts to sue and recover damages from the defendant in a civil action. Evidence that the defendant has paid or been ordered to pay compensatory fines under this section may not be introduced in any civil action arising out of the facts or events which were the basis for the compensatory fine. However, the court in such civil action shall credit any compensatory fine paid by the defendant to a victim against any judgment for punitive damages in favor of the victim in the civil action.
When Can A Court Impose a Compensatory Fine?
The compensatory fine statute comes into play only if the injured victim has a remedy by civil action for the injuries he or she suffered as a result of the crime. To be a “victim” under ORS 137.101, a person must have “suffered economic damages as a result of the offense.” ORS 137.103(4)(a). “Economic damages,” in turn, is defined by ORS 137.103(2), which incorporates the definition provided by ORS 31.710(2)(a). That statute provides, “‘Economic damages’ means objectively verifiable monetary losses including but not limited to reasonable charges necessarily
incurred for medical, hospital, nursing and rehabilitative services and other health care services.” ORS 31.710
(2)(a).
ORS 137.101(1) specifies that the trial court may impose a fine as a “penalty,” and that the court may order the defendant to pay “any portion” of the fine as a compensatory fine. The statute does not tie the amount of the compensatory fine to the amount of economic damages that a victim has suffered. In contrast, the restitution
statute, ORS 137.106(1), provides that “the court shall enter a judgment or supplemental judgment requiring that the
defendant pay the victim restitution in a specific amount that equals the full amount of the victim’s economic damages as determined by the court.” The only requirements that must be met for a trial court to impose a compensatory fine are that the injured victim have “a remedy by civil action” for the injuries that he or she suffered as a result of defendant’s crime and that punitive damages have not been previously decided in a civil case arising out of the same act and transaction.
Under ORS 161.635, a sentencing court may impose up to a $6,250 fine for a Class A misdemeanor. ORS 137.101(1) authorizes the court to order the state to share a portion of that penalty fine with a victim of the offense. The statute “authorizes the court to order the defendant to pay ‘any portion of the fine’—that is, the fine that the court imposed as a penalty—to the clerk of the court for payment to the victim or victims”). However, a court cannot impose a punitive fine under ORS 161.635 and– in addition– a compensatory fine under ORS 137.101(1). There is no statutory authority to award– in addition to a fine imposed under ORS 161.635(1)– a compensatory fine under ORS 137.101(1). ORS 137.101(1) does not itself authorize a court to impose a fine, compensatory or otherwise.