Friday, March 25, 2011

Restituion and Civil Settlements

In June 1982, (1982 Proposition 8) the people of California made recovery of victim restitution a Constitutional right.  Ever since then, defendants have been arguing that a civil settlement and payment to a victim (typically paid by an insurance company) means that the defendant cannot be ordered to pay restitution to that victim.  This argument is often made to try to avoid restitution by riding on the coat tails of an insurance company payment. However, one of the oldest laws on the California books (from 1872) instructs: “When the violation of a right admits of both a civil and criminal remedy the right to prosecute the one is not merged in the other.” Code of Civil Procedure §32, entitled “Civil and Criminal Remedies not Merged.”  In other words, a civil settlement with a victim should not foreclose victim restitution.

Not surprisingly, every California appellate court that has heard a defendant argue that his civil settlement with the victim means he cannot be forced to pay restitution has rejected that argument. The latest case is from December 2010. “[T]he settlement of a civil action and release of the defendant by the crime victim does not discharge the defendant's responsibility to satisfy the restitution order.” People v. Vasquez (2010)190 Cal. App. 4th 1126, 1133.