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Restitution — Defenses — Accord & Satisfaction

State v. Laura Walters, 224 Wis.2d 897, 591 N.W.2d 874 (Ct. App. 1999)
For Walters: Todd W. Bennett

Issue/Holding: The COA refuses to acknowledge accord and satisfaction as a restitution defense. Restitution, the court reasons, “is not a claim which a defendant owns, as a civil claim is. It is a remedy that belongs to the State.” While a goal is to make the victim whole, liability for restitution is grounded “on the State’s penal goals that affect the defendant, such as rehabilitation, punishment and deterrence.”

But these avowedly penal goals sound pretty much indistinguishable from any other sentencing disposition. So why isn’t a guilty-plea defendant entitled to know this explicitly penal consequence, before entering the plea? Because the COA said so, in State v. Dugan, 193 Wis. 2d 610, 534 N.W.2d 897 (Ct. App. 1995), the court stressing that the primary purpose of restitution isn’t to punish the defendant, but to compensate the victim, 193 Wis. 2d at 623-24. In sum, for one purpose restitution is compensatory, for another it’s penal.


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