Money & the Law: Restitution a key element of criminal justice system | Business

An important part of our criminal justice system involves restitution. Someone guilty of a criminal act causing damage has, per the Colorado General Assembly, both a “moral and legal obligation to make full restitution to those harmed by their conduct.”

And, per the General Assembly (although reasonable minds might differ on this), “restitution will aid the offender in reintegration as a productive member of society.”

In any event, Colorado has a complex statute dealing with restitution. This statute says that, at the time of sentencing, a judge must consider the issue of restitution and the prosecuting attorney must help by providing information the judge will need in order to make a reasoned and thoughtful decision.

Under the restitution statute, “victim” is broadly defined and includes not just a direct victim of the defendant’s conduct but also indirect victims, to include an insurance company that, under the terms of an insurance policy, has made a payment to the direct victim. Back in March, the Colorado Court of Appeals had to deal with just such a case, bubbling up out of a bizarre set of circumstances. A man named Arnold Martinez tried to steal a bicycle out of a residential garage. This was not any old bicycle — it was a $6,000 bicycle. (The garage was in Boulder …) As Martinez pedaled away on the bicycle, the owner jumped into his car and gave chase. The owner caught up with Martinez and turned his car in front of him, at which time Martinez crashed into the bicycle owner’s car. The bicycle, interestingly enough, was not damaged. However, the bicycle owner’s car was damaged, necessitating $2,393.84 in repairs.

The bicycle owner’s auto insurance company, GEICO, paid $1,893.84 of this amount (the repair cost less a $500 deductible). GEICO then claimed it was a “victim” under the restitution statute, resulting in a restitution order against Martinez, who had pled guilty to various crimes.

Martinez, although you would have thought he had bigger things to worry about, contested the restitution order. He argued, first, that a 2000 amendment to the restitution statute removed insurance companies from the definition of “victim.” This argument didn’t fly, but it took the Court of Appeals many pages in its opinion to say why.

Martinez’s other argument was more interesting. He said he did not cause the damage to the bicycle owner’s vehicle. What caused the damage, he said, was the owner turning in front of him. This argument also didn’t fly. However, the court again had to spend many pages explaining its decision.

Basically, the court had to discuss how the law deals with causation in a traffic accident. This included an explanation of “proximate cause,” a concept that has baffled law students (and judges) since the beginning of time. For someone to have been the “proximate cause” of an accident, the accident had to have been “reasonably foreseeable” to the person whose conduct is claimed to have caused the accident.

The Court of Appeals, looking for a way out of this legal quicksand, finally concluded that crashing into the bicycle owner’s car was reasonably foreseeable to Martinez in a circumstance where he had stolen the bicycle and was riding away. Therefore, he was the proximate cause of the accident and restitution was an appropriate part of his sentencing.

Along with other details of the restitution statute that I found interesting, the debt resulting from a restitution order cannot be cancelled through a bankruptcy filing and there is no statute of limitations. However, two years after a defendant’s death, the restitution order can be cancelled.

As you might expect, collecting on a restitution order can be challenging, especially if the defendant is in prison. However, the sentencing court has multiple tools available to it to chase the defendant around until the ordered restitution is paid, including wage garnishments, liens on property and grabbing tax refunds.

Jim Flynn is with the Colorado Springs firm of Flynn & Wright LLC. You can contact him at

mo******@jt*****.com











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