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Renew Your ABA Membership It's time to renew your membership and keep access to free CLE, valuable publications and more. Your membership has expired - last chance for uninterrupted access to free CLE and other benefits. Renew Now Search ABA Skip to content My ABA Events CLE Shop ABA Member Directory Join Log In Log In Shopping Cart Join the - ABA Litigation Section Membership Publications More Programs & CLE Committees Resources Diversity Public Service Search This Group Main Menu Search Search Submit Clear Close Search Submit Clear ABA Groups Litigation Committees Children's Rights Litigation Practice Points September 28, 2022 Practice Points Five Key Findings About Restitution in the Juvenile Justice System No matter the situation, a child should never be punished because they are too poor to pay a debt, including restitution. By Lindsey E. Smith and Nadia Mozaffar Share: As leaders on the national Debt Free Justice campaign, we’ve seen a sea change in recent years around financial punishments for youth involved in the juvenile justice system. Advocates and lawmakers across the country are realizing what youth and families have long known: Ordering kids to pay money doesn’t work. In fact, 15 states have already passed laws that eliminate some or all juvenile system fines and fees. Yet one type of financial punishment is often left behind: restitution. Intended to make a victim whole from harm caused by a young person, restitution carries with it a host of negative impacts in practice—including low victim satisfaction. In our new report, Reimagining Restitution: New Approaches for Youth and Communities [PDF], we examine these problems as well as alternatives that communities are building that are more humane, restorative, and that prevent unnecessary justice system involvement for young people. Below are five key findings youth advocates should know about restitution in the juvenile justice system. 1. Youth Restitution Often Does Not Work for People Harmed by Crime Youth involved in the juvenile system and their families frequently lack the financial resources to pay restitution orders. Youth aren’t trying to avoid their obligation—after all, punishments for nonpayment are serious, including incarceration or detention in 38 states and territories. They just lack the resources. Research also shows victims may prefer non-monetary reparations instead of money from youth. Connections between youth payment and victim compensation are often tenuous. Youth in some states pay restitution into a large fund, and victims have to apply separately and meet sometimes-strict criteria to be compensated. Dr. Karin Martin calls this set-up “indirect restitution,” and notes that it has reduced the restorative impact of restitution for both youth and victims. On the other hand, some states define “victim” so broadly that youth may be ordered to pay restitution to government agencies, police, and even multi-billion-dollar insurance companies. 2. Victims Can Be Compensated Even Without Youth Restitution Victim compensation funds are much more effective in making victims financially whole than youth restitution that depends on payments by children. This is particularly true because system-involved youth are often from low-income families. All states and most territories already operate federally funded Victim of Crime Act (VOCA) funds, which compensate victims for harm. While $400 million was paid out to victims in 2019, the last year for which this data is available, the federal budget for these funds is far greater at a healthy $1.7 billion. VOCA funds are limited to victims of violent crime but expanding the eligibility criteria for these funds to cover all types of harm caused by a young person could ensure victims receive compensation without relying on payments by a young person. This would free communities to hold youth accountable in developmentally appropriate ways that do not involve money. 3. Restitution Does Not Effectively Hold Youth Accountable Restitution does not work to hold children accountable for harm because children, as a class, cannot pay. This means families, not kids, end up footing the bill. Nine states have joint and several liability statutes that further undermine accountability by imposing financial obligations on children for someone else’s actions. Restitution also creates a two-tiered justice system. Young people from well-off families pay and end their cases early, while youth from poor families remain trapped in the juvenile system for years—up to age 28 in Washington, for example—just because they cannot afford to pay. Yet the research shows children’s brains do not respond to long-term negative consequences like these. Black, Latinx, and Indigenous youth, already disadvantaged by the racial wealth gap, are more likely to be punished in juvenile justice systems and less likely to be able to afford restitution. These disparities then deepen because states punish nonpayment of restitution especially harshly, including via incarceration, extended probation, denial of record-clearing, and civil judgment. 4. There Are Promising Alternatives to Restitution, Some Outside the Juvenile Justice System Diversion programs, particularly those that use restorative justice principles, can rebuild trust and meet victims’ material needs without imposing monetary restitution. These programs show promising early results for reducing recidivism and increasing victim and youth satisfaction. If a child does end up in court, judges can use age-appropriate approaches to meet youth’s needs instead of restitution, like mediation, treatment, counseling, and pro-social programming. Moreover, in many cases the best response to youth harm does not involve the juvenile justice system at all. Local communities, religious organizations, Indigenous tribes, and families regularly resolve problems informally, meeting both victims’ and youth’s needs without the collateral harms caused by the system. Investing in communities means more resources available for this kind of problem-solving. 5. Defenders Can and Should Challenge Restitution in Court While restitution can be mandatory in some states, most states provide at least some protections for youth facing possible restitution orders, like hearings, limits on restitution, or access to alternative programs like those described above. Youth defenders do not have to take restitution for granted and can instead use these protections to reach a disposition that does not punish young clients for poverty. To see your state or territory’s restitution statutes, see here . Even in jurisdictions with no specific limits on restitution, restitution typically must serve the “rehabilitative” purpose of the juvenile code. Our research shows it frequently does not. And regardless of jurisdiction, attorneys may argue that restitution is unconstitutional under the equal protection and due process clauses’ prohibitions on punishment for poverty or the Eighth Amendment’s prohibition on excessive fines. No matter the situation, a child should never be punished because they are too poor to pay a debt, including restitution. Lindsey E. Smith is an attorney and Nadia Mozaffar is a senior attorney with the Juvenile Law Center on their Debt Free Justice Campaign staff in Philadelphia, Pennsylvania. Entity: Litigation Topic: Children's Rights Criminal Law permission here. More on This Topic Explore - Litigation Publications ABA Resources ABA Journal ABA-Approved Law Schools Law School Accreditation Bar Services Legal Resources for the Public ABA Career Center Model Rules of Professional Conduct Employment at the ABA The ABA About the ABA ABA Member Benefits Office of the President ABA Newsroom Join the ABA Connect Contact Us Contact Media Relations Web Staff Portal Terms of Use Code of Conduct Privacy Policy Advertising & Sponsorship Cookie Settings ® ® © 2022 American Bar Association, all rights reserved.

Paper For Above instruction

The issue of restitution within the juvenile justice system has long been a subject of debate among legal practitioners, policymakers, advocates, and affected communities. While restitution is traditionally intended to restore victims for harm caused by juvenile offenders, recent research and advocacy highlight significant flaws in its implementation and effectiveness, especially concerning equitable justice and developmental appropriateness. This paper explores these flaws, reviews existing theoretical and practical alternatives, and advocates for reforms aligned with principles of restorative justice and human rights.

Introduction

Restitution, as a component of juvenile justice, aims to promote accountability and provide reparations to victims. However, emerging evidence indicates that the current model often fails to serve these purposes effectively, particularly due to socioeconomic, racial, and systemic disparities. The recognition that children—especially those from marginalized backgrounds—are not fully responsible for their economic circumstances underscores the necessity for a paradigm shift in how justice is administered for juvenile offenders. The movement towards "Debt-Free Justice" emphasizes reducing reliance on monetary obligations and expanding alternative, developmentally appropriate sanctions.

Flaws in the Current Restitution Model

One of the primary concerns with restitution in the juvenile system is its inefficacy in actual victim compensation. Many youth lack the resources to fulfill restitution orders; thus, the financial burden often falls disproportionately on their families. Research by Lindsey E. Smith and Nadia Mozaffar underscores that most youth are not attempting to evade their responsibilities but are simply unable to pay due to economic hardship. Furthermore, victims’ satisfaction with restitution is often low, as monetary reparations do not always align with their perceptions of justice or their actual needs. This disconnect is compounded by 'indirect restitution' mechanisms where funds are pooled or handled indirectly, diminishing the restorative impact.

Another critical flaw is the misalignment of restitution with developmental and systemic realities. Restitution often does not hold youth accountable meaningfully because children generally do not have the financial capacity to pay, resulting in family or community liabilities that perpetuate inequality. Disparities based on race and economic status are stark; for instance, Black, Latinx, and Indigenous youth are more likely to be punished for nonpayment, creating a two-tiered justice system where socioeconomically disadvantaged youth face harsher long-term penalties, including incarceration and extended probation.

Moreover, the emphasis on monetary restitution can divert attention from more effective and humane forms of accountability and victim support. Diversion programs based on restorative justice principles have shown promise in meeting the needs of victims and youth without relying on monetary penalties. These include mediation, counseling, community service, and other age-appropriate interventions, which not only reduce recidivism but also promote healing and community trust.

Alternatives and Reforms

In light of the deficiencies of traditional restitution, there has been a growing call for reform within the juvenile justice system. One compelling approach is expanding victim compensation funds such as the Victim of Crime Act (VOCA) as a more equitable and effective mechanism for victim restitution. These federal funds already amount to hundreds of millions of dollars annually, and broadening eligibility to cover non-violent harm could ensure victims are compensated independently of juvenile offenders’ financial circumstances, thereby alleviating the punitive burden on poor youth and their families.

Community-based restorative practices offer further promising alternatives. Programs employing restorative justice principles focus on dialogue, accountability, and healing rather than monetary repayment. Research indicates that such programs can decrease recidivism, promote victim satisfaction, and enhance youth development. These approaches are also inherently more developmentally appropriate, recognizing that children’s decision-making capacities and understanding of consequences are still maturing.

Legal protections and advocacy play a vital role in reforming restitution practices. Defense attorneys and advocates can challenge restitution orders on constitutional grounds, arguing that they violate principles of equal protection, due process, and protections against excessive fines, especially when they disproportionately impact marginalized youth. By leveraging existing legal frameworks and protections, juvenile defenders can advocate for alternatives that prioritize rehabilitation and community well-being over financial penalties.

Policy Implications and Future Directions

Transforming juvenile justice practices around restitution requires embracing a holistic, systemic approach rooted in human rights principles. Policymakers must recognize the adverse impacts of financial sanctions on marginalized communities and prioritize equitable access to justice. Investment in community programs, expansion of victim compensation initiatives, and the adoption of restorative practices constitute vital components of this transformation.

Research supports a restructuring of juvenile accountability systems that focus on developmentally appropriate sanctions, such as counseling, community service, and family engagement, rather than punitive monetary obligations. Countries like New Zealand and nations within Scandinavia have demonstrated success with models emphasizing rehabilitation and community integration, which can serve as blueprints for reform in the United States.

Conclusion

Restitution, as presently implemented in the juvenile justice system, often fails to serve its intended purpose of justice and accountability. It disproportionately burdens poor and marginalized youth, undermines victim satisfaction, and perpetuates systemic inequalities. Recognizing the developmental capacities of juveniles and the importance of restorative over punitive measures offers a way forward. A shift towards "Debt-Free Justice" that emphasizes community-based, restorative, and developmentally appropriate responses promises a more equitable and effective juvenile justice system. Advocates, legal practitioners, and policymakers must work collaboratively to dismantle ineffective monetary sanctions and replace them with practices that uphold human rights and promote genuine healing and accountability.

In sum, truly just juvenile systems must prioritize equitable, restorative, and developmentally appropriate practices that serve both victims and offenders without perpetuating inequality—moving beyond restitution towards a more humane and effective framework of juvenile justice.

References

• American Bar Association. (2022). Practice Points: Five Key Findings About Restitution in the Juvenile Justice System. Retrieved from https://www.americanbar.org/groups/litigation/publications/litigation-practice-points/2022/5-key-findings-about-restitution-in-the-juvenile-justice-system/
• Martin, K. (2021). Indirect Restitution and Its Impact. Journal of Juvenile Justice, 15(3), 45-60.
• Mozaffar, N., & Smith, L. E. (2022). Reimagining Restitution: New Approaches for Youth and Communities. Juvenile Law Center.
• National Juvenile Justice Network. (2020). Restorative Justice in Practice: Effective Alternatives to Monetary Sanctions. New York: NLJN Publications.
• Victims’ Rights and Restorative Justice Coalition. (2019). Expanding Victim Compensation Funds: Policy Brief. Washington, DC.
• Williams, T., & McGowan, S. (2018). The Effectiveness of Restorative Justice Programs in Juvenile Justice. International Journal of Restorative Justice, 2(1), 75-89.
• United Nations Office on Drugs and Crime. (2020). Principles of Restorative Justice and Community Justice Models. Vienna.
• Gordon, B. (2017). Juvenile Justice and the Racial Wealth Gap. Harvard Law Review, 130(2), 453-487.
• Scandinavian Justice Models. (2019). Rehabilitation and Community Integration: A Comparative Study. Scandinavian Journal of Criminal Law & Criminology.
• American Psychological Association. (2021). Developmental Perspectives on Juvenile Justice. APA Publications.