An incomplete justice. The state says there’s no problem with how they handle restitution. Too bad they’re wrong.
If you aren’t familiar with it, one of the issues I’ve brought up from time to time is how dismally the State handles the administration of restitution orders as provided for by judges. The reality of it for me is pretty close to home. You read about cases such as the one I deal with far too often in the newspaper, probably because our culture in South Dakota is very much based on trust, and a person’s word being their bond. And then people find out that among all the good people in our midwestern society, you inevitably come across a few finks.
As I’ve related before, my dad is a small businessman who was a victim of a long-time employee who handled all of his business’ clerical and financial functions. While he was on the road, which was often, his employee got the mail, handled the books, and paid the bills. Not only was this person an employee, she was a trusted friend who also worked for my family’s other business. The close personal friendship, as well as the total access over finances ultimately allowed this person to start stealing money - a lot of money. And as should be done, once it was discovered, despite the heartbreak, it was turned over for prosecution.
The prosecution and action by the court was exemplary, and “our thief” was sentenced to the women’s prison in Pierre. Part of the sentence as ordered by the judge was that she make restitution. And as the responsibility for oversight of restitution shifted from the judiciary over to those employed by the Parole Board/DOC….. of course, here’s where any concern for the victims of a crime was discarded.
Of course, no one went into things thinking that we’d ever see all of the money back. However, what was shocking was the depth of neglect that we have found ourselves subjected to by those who are supposed to be in charge of tending to such matters. And it continues to this day. It’s not an uncommon problem. If you speak with state’s attorneys, they’re quick to acknowledge that the state’s handling of restitution obligations can be a challenge in working with victims. Evidence of the problem is also noted by others involved in the process. As you might guess, those in charge of ensuring that the system is responsive to the citizenry say that everything is A-ok. Unfortunately, they couldn’t be farther off the mark.
I’ll be the first to tell you that not all cases end up as problematic. In fact, there’s one good way to make sure that repayment is made. Beg the prosecuting attorney and the judge not to sentence the offender to prison. No matter how egregious the act. Because the best way of ensuring that the victim might be made whole is to make sure that responsibility for the victim isn’t handed off to the Parole Board/DOC.
Welcome to South Dakota’s system of victim’s assistance.
If a case remains strictly in the hands of the judicial system, you generally hear few complaints. If a person manages to avoid jail time, the judge can be creative in their sentencing. He can (and will) use such things as jail time as a hammer over a criminal’s head to enforce repayment of restitution obligations. However, if the offense is so offensive to the court that they can’t avoid jail time, then the State’s Parole Board/Department of Corrections takes over that arrangement. And here’s where things go downhill quickly.
Obviously, I’m intimately familiar with the details of my family’s own personal case, but I’m not oblivious to that case being close to home. So, for objectivity’s sake, as an example, I’ll cite one of the more heart wrenching cases:
On May 26, 1998, (Jeffrey) Holsing pleaded nolo contendere to three counts of sexual contact with a minor. One of the three victims was R.S. On August 12, 1998, the trial court sentenced Holsing to three concurrent 7-1/2 year terms in the South Dakota State Penitentiary. The trial court suspended three years of each sentence on certain conditions, one of which was Holsing make restitution to the victims for the costs of counseling. The trial court further ordered that restitution be paid according to a schedule to be determined by the Board of Pardons and Paroles (Board), should Holsing make parole.
On December 13, 2002, the Board held a restitution hearing. The victims were given notice of the hearing. The amount of restitution for R.S. was set at $5,709.25. R.S. did not object to the Board’s plan of restitution. Holsing paid restitution of $5,709.25 to R.S. while on parole. A certificate of discharge from parole was issued on July 25, 2004. On August 12, 2004, Holsing’s citizenship rights were restored.
On July 8, 2005, the State filed an application for order to show cause against Holsing seeking to have the trial court order Holsing to pay an additional $190,768.83 in restitution to R.S. The trial court dismissed the State’s application concluding that it no longer had jurisdiction to order Holsing to pay additional restitution.
Read that here. So, a little girl is molested, and the judge very properly orders restitution for the victim’s counseling expenses. But because the people put in charge of ensuring the sentence was carried out discharged this criminal from parole before restitution was complete, a victim’s family is left holding the bag for nearly $200,000 in expenses.
Why do things like this take place in South Dakota? Because the DOC and Parole Board are more worried about warehousing the people they have, as opposed to any other part of the sentence. The only time and attention they spend on justice deals with the incarceration end of things. What has traditionally been lost in the mix is ensuring that the parolees they’re in charge of meet financial obligations they might have to victims.
In other words, they’re helping to ensure an incomplete justice, where the state gets it’s pound of flesh, and the victim is all too often left wondering “what happened?”
Why do I bring this up now? More than a year ago, I’d spent extensive time working on this issue. Legislators were spoken with, it was brought up in meetings involving the DOC & legislators, and ultimately, I had contact with Kevin Forsch of the Governor’s office who promised me that they would look at the issue for a possible solution to the problem.
After letting the issue sit for about a year out of deference to the Governor’s office - I recently got my response on how they thought they should solve the problems with the system:
In reviewing your question I find two issues: 1) the restitution system including the processes in place to determine a fair amount, payment, collection, etc. and, 2) your fathers specific situation.
Regarding number 1) I asked DOC to provide me with an update on year-to-date collections and process issues & complaints. After reviewing the information and following discussion with others in the office we determined there were no obvious problems with “the system”. So, we are not planning to make changes to the system.
It took better than a year to get to that conclusion? Aside from the fact that I once again can go beat my head against the wall for a fruitless exercise, I think they’re missing my point.
The system IS broken. Terribly, in some instances. If they don’t think there are any obvious problems with the system, then maybe they should go take to the family of the once little girl only known as R.S. - I doubt they’d agree. I know I don’t, after hearing on Friday from my dad (again) that “his thief” failed make her restitution payment on a timely basis, if at all (again), it is clearly a problem in need of a solution.
What do I think needs to be done? Here’s a list…
1. The 1991 South Dakota Victims’ Rights Act - which will be 18 years old this next session - needs a legislative review, and possibly an update. That act defined much of what is currently on the books as far as victim rights. While it was a good start, there is still much that can be addressed as far as crime victims go.
2. Frankly, the DOC is terrible in making sure court-ordered restitution payments are collected. Really, really bad. But if you think about it, the state’s Office of Child Support Enforcement is good at doing what in essence is the same thing, collecting money that courts have ordered someone to pay. And they’re really, really good at it. If the Crime Victims’ Compensation Fund can be administered through DSS, why not hand off the collection duties for restitution obligations handled by the state as well? And let me be the first to say that in the case for non-violent offenses - I’d be happy to step up to the plate and offer to help fund it from the restitution payments themselves. Say, 5% or 10% of the amount collected is retained by the state for their expenses in collecting it. Anyone facing this struggle would be happier with 90% of something than 100% of nothing.
3. Whether it’s done through legislation or simple awareness, the parole board and it’s agents must be more creative in trying to make the victim whole. Re-incarcerating someone is often impractical (and not to mention expensive) because a criminal missed a monthly $100 or $250 restitution payment. In addition to the fact that the criminals know they have to go pretty far to be re-incarcerated. However, if that same offender knew that they had a mandatory community service commitment that was placed upon them if they failed to honor their restitution requirement on a timely basis, and they’d be picking up garbage every weekend until they got back on track, I think you’d find few offenders. Judges get creative with sentences all the time, such as require no alcohol use for a year, or other things to encourage an offender’s compliance with his sentence. So, why can’t the parole board and it’s agents exhibit similar creativity in ensuring that what the court ordered actually happens.
At the end of the day, I know I probably won’t be able to affect my family’s situation one iota. However, if how things are mishandled today can be changed to make it better for the inevitable future victims of crimes, then any efforts in fixing the system will have been time well spent.
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Comments
I wish Bill ran the government. We would have so many fewer problems. PP’s problem would still probably exist, but a lot of others would go away, right Bill?
the gannett and argus folks are starting to freak out:
http://gannettblog.blogspot.com/2008/11/breaking-gannett-launches-mass-layoff.html
According to KELO TV news online, someone may just be heading back to the clink for not paying thier restitution.
Pat:
The emphasis of our penal system is to punish or at least warehouse people. Punishment is easy. Rehabilitation, reconciliation, and making amends are difficult. Until we as a society start to take a different approach to corrections, all the system will do with any degree of competency will be to punish.
Dr. Karl Menninger pointed the way out of this 50 years ago. But no state has the guts to do what he suggested. His home state of Kansas started down the path then turned back.
Obviously, the worst criminals need to be locked away for our protection. I even think the most heinous murders should also give up their lives. But there is a long continuum from the Robert Leroy Andersons of South Dakota to the petty criminals and even the embezzlers like the one who victimized your family.
But you and I both know that no politician ever lost an election because they were too hard on crime. And hard means jail time.
Todd Epp
SD Watch http://www.southdakotawatch.net
Epp: What was Karl Menninger’s views?
Sidenote:
For the majority of those locked away, the holders of the keys do not have the time to rehabilitate. They are too busy filling out forms. Further those who society wants to rehabilitate it is not up to us; it is up to the individual to see the err of their ways. Some plain do not care.
Actually, I believe the only reason that person is going back to Jail is because it is in the Federal system - not the state courts where it rarely happens.
Policy, policy, policy. Check out the policy in regards to dismissing probation and continuing restitution payments. I believe, I do not know for sure, that if someone is released from probation their restitution is dismissed.
Of course those who feel they have been failed could seek a civil case I would think. How about that Epp????
(Anon - you are 100% correct - what happens is that they often will dismiss before those obligations are complete, and the victim is left high and dry.)
A couple people have resigned from the Board of Pardons and Paroles. I would think it would be on the net somewhere. Can’t people google it???
You do realize those who serve on the board have inmates who lets say are not so nice to them…. enf said.
THOMAS CIHAK
MARK F. MARSHALL
MICHAEL J. McGREEVY
JAMES D. SHERIDAN
DEBRA C. FLUTE
SARA L. BURNETTE
TED J. PINS. Jr.
DENNIS KAEMINGK
JEROME LAMMERS
One thing I’d note that many of the people on the list, such as Sara Burnette & Jerry Lammers are top notch. It’s not that they are requesting that the system be handled in such a manner, it’s jut the way it’s always been done. And it’s time to look at doing it in a way that’s more responsive to the needs of the victim.
I agree PP, and sometimes, policy needs updated.
How many times have we heard that a victim is revictimized?? This goes for court as well as on the outside of court.
To be honest, I also think we need to look at the sex offenders policy. I believe that some are listed, when truly, they are not sex offenders. I also know that some people here will want to throw me to the wolves at meal time for making such a statement.
Just think of it as a bailout, PP. Like the banks get. You trust them, they screw you, so you stop paying them. They run out of cash, so the gummit lets ‘em off the hook.
The only dif between your family’s former friend/employee and the big banks and insurance cos is, your friend had to do some jail time first.
Plus she missed out on the parties in the Caymans and the Lear Jet rides.