Crime Victims, Restitution and Civil Remedies

homePg4A victim of a crime often suffers economic loss. Such losses include costs of medical care for victims of vehicular and violent crimes (drunk driving, negligent homicide, manslaughter, assault and aggravated assault) and property losses for economic crimes (fraud, theft, embezzlement). The crime victim has the constitutional right to pursue restitution in the criminal prosecution that the State brings against the wrongdoer. But restitution is rarely paid in full, if at all. And restitution does not provide coverage for consequential damages, like pain and suffering.

Fortunately, the crime victim often has a second remedy:  the crime victim may pursue a civil judgment against the wrongdoer. Unlike a restitution award in a criminal case, the crime victim may pursue a civil judgment for all damages, including pain and suffering damages, and where appropriate, punitive damages.

Up until very recently, the law provided that a victim who pursues a civil judgment against the criminal defendant must offset that judgment by the amount of the restitution award. The rationale behind the law was to prevent the victim from being overly compensated for his losses. For example, if the victim obtained a $100,000 restitution award against the wrongdoer (for economic losses arising out of the commission of the crime), yet had full damages of $300,000, the victim could pursue a judgment against the wrongdoer for $300,000. The judgment, however, would be offset, or “credited,” by the amount of the restitution award, so the victim would have only a $200,000 judgment against the wrongdoer.

Seems fair, right? Wrong. The former law presumed that the criminal defendant would actually pay the full $100,000 restitution award. This is rarely the case. Criminal defendants are typically ordered to pay a small amount towards restitution each month, either during their period of probation or upon their release from prison. Most victims receive only a small percentage of the restitution award, if they receive anything.

Fortunately, in 2012 the Arizona State Legislature amended the law (A.R.S. §13-807: Civil actions by victims or other persons). The amount credited against the civil judgment is no longer the full amount of restitution award that the court ordered, but instead the amount of restitution that the criminal defendant actually pays the victim. This way, the crime victim has a greater likelihood of being fully compensated when pursuing both civil and criminal remedies against the wrongdoer.

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