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Restitution – “Victim”: Obligor of Bail Forfeited by Defendant’s Violation of Bond Condition

State v. William Agosto, 2008 WI App 149, PFR filed 10/21/08
For Agosto: Andrea Taylor Cornwall, SPD, Milwaukee Appellate

Issue/Holding: The defendant’s mother, who posted subsequently-forfeited cash bail, is a “victim” for restitution purposes:

¶8        …

  • Agosto committed the “crime” of bail-jumping. He pled guilty and the circuit court entered a judgment convicting him of that crime.
  • As a result of that crime, Agosto’s mother lost $50,000, and she lost it by the artifice of her son’s false promise to comply with the conditions of his bond as surely as if he had taken the $50,000 from her by force.
  • Thus, Agosto’s mother was the “victim” of his having committed the crime of bail-jumping. See State v. Galli, 967 P.2d 930, 937–938 (Utah 1998) (If the defendant had either pled guilty to or admitted to violating the conditions of his bail, he would have been subject to a restitution order directing him to reimburse the person who posted the bail that was forfeited as a result of the violations.).

¶9        As applicable here, a circuit court may impose a restitution order as part of a sentence if the following is true:

  • the beneficiary of the restitution order is “[a] person against whom a crime has been committed” (so as to be a “victim”); and
  • the beneficiary of the restitution order is a victim of a crime that is “considered at sentencing.” He or she need not be a victim of the crimes for the sentence imposed (here, sexual assault and interference with child custody).

Both of these requisite elements are present here.

An expansive definition of “victim,” but that’s nothing new. One thing to note: even if not forfeited, bail upon defendant’s conviction must be disbursed toward restitution and costs, § 969.03(4). Is Agosto entitled to reduction of the bail-jumping restitution by the amounts that would have been taken from bail even absent his bail-jumping? Not discussed by the court. Too bad, not just because you then have to wonder not just about how the amount of restitution was calculated but also about the court’s rationale altogether, which is pretty much limited to analogizing the bail-obligor to a robbery victim (¶8). Just how strong is the analogy? Not too many robbery victims sign contracts agreeing ahead of time to the loss of property taken during a robbery. Agosto’s mother wasn’t tricked into signing the bond agreement. She may have hoped her dutiful son wouldn’t violate; she may have held him to an unrealistic standard of decent behavior; his abuse of her touching faith might have been the stuff of day-time tv; but nothing in the opinion suggests she was tricked into putting herself at his mercy. (So much, too, for the notion of the lad’s artifice.) She likely believed there was no risk (what economists like to call a “moral hazard”), but she wasn’t misled: she merely assumed that filial love was equal to maternal devotion, such that no risk accrued to her money. And that also gets back to the original point, that she well-knew, from the plain terms of the agreement, that something would be deducted; she knew in other words, that at a minimum she wasn’t going to get it all back. It wasn’t a “moral hazard” after all (or maybe it was, but in a lay, not technical, sense). In for a penny, in for a dollar. Briefly put, although it might well be that she ought to be considered a “victim” for restitution purposes, the court of appeals’ reasoning doesn’t support that idea.

The original restitution order, by the way, was 50k, reduced later to 12k, a still-substantial amount. At just what point does restitution become punitive (which isn’t to say, off-limits but rather, similar to a fine, a “direct” consequence of a conviction)? And, similarly, when does a restitution order trigger the right to jury? Never, in the current view of the courts. But perhaps thought should be given to at least raising the problem.

The court, incidentally, not content merely to expand the definition of victim under the restitution statute, proceeds to similarly expand the court’s authority to enter a similar order for purposes of extended supervision, ¶9.

 

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