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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. 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Paper For Above instruction

The issue of juvenile restitution in the justice system is a complex and multifaceted topic that demands thorough examination. Restitution is intended as a means to compensate victims for harm caused by juvenile offenders. However, recent research and policy analysis reveal that the traditional approach to restitution often fails its intended purpose, especially when considering the developmental, socio-economic, and racial disparities affecting juvenile populations. This paper explores the limitations of current restitution practices, the effectiveness of victim compensation funds, and promising alternatives that embrace restorative justice principles and community-based solutions.

One of the fundamental problems with juvenile restitution is its ineffectiveness in actually compensating victims, particularly when juveniles lack the financial resources to fulfill restitution orders. As noted by Lindsey E. Smith and Nadia Mozaffar (2022), youth involved in the juvenile system and their families often cannot pay these financial obligations due to poverty, and punishments for nonpayment—such as incarceration—only exacerbate their struggles. Research emphasizes that victims often prefer non-monetary reparations, highlighting a disconnect between restitution as a monetary obligation and the actual needs of victims. Furthermore, the setup of indirect restitution, where funds go into large pools and victims must apply separately, diminishes the restorative impact (Smith & Mozaffar, 2022). The undervaluing of monetary restitution, especially to low-income families, reflects systemic flaws that undermine the justice system's restorative goals.

The effectiveness of victim compensation mechanisms, specifically those funded through federal funds like the Victim of Crime Act (VOCA), represents an alternative that addresses the shortcomings of juvenile restitution. Victim compensation funds are designed to provide direct financial redress to victims without relying on juvenile offenders’ payments, which often never materialize due to socio-economic hardships. Data from 2019 shows that victims received around $400 million, with a federal budget of $1.7 billion dedicated to such funds (Smith & Mozaffar, 2022). Expanding eligibility criteria and equitably distributing compensation could mitigate the reliance on juvenile payments and uphold the restorative justice principle of “making victims whole,” without disproportionately burdening low-income youth.

In addition to addressing victim needs, the paper critiques the justice system’s ability to hold juveniles accountable. Since children, as a general rule, are developmentally unable to understand or respond to long-term consequences, traditional restitution often fails to promote accountability. Many states impose joint and several liabilities that hold juveniles and their families responsible for debts beyond their capacity, often leading to extended involvement in the justice system and perpetuating racial disparities. Black, Latinx, and Indigenous youth are disproportionately affected, as these groups face higher rates of punishment and nonpayment consequences (Smith & Mozaffar, 2022). This systemic bias underscores the need for alternatives rooted in restorative justice that are developmentally appropriate and equitable.

Restorative justice approaches are emerging as effective alternatives to traditional restitution. These include diversion programs, community mediation, and culturally sensitive practices focused on healing rather than punishment. For example, community-based programs involving religious organizations, indigenous tribes, and families have successfully resolved conflicts informally, fostering trust and reducing recidivism (Smith & Mozaffar, 2022). Judges can incorporate age-appropriate dispositions like counseling, mediation, and social services, which prioritize the youth's well-being and community safety over monetary penalties. Such methods exemplify a shift toward emphasizing rehabilitation and social reintegration rather than monetary retribution.

Legal advocates and defense attorneys play a critical role in challenging restitution orders on constitutional grounds. They can invoke protections under the due process and equal protection clauses, as well as the Eighth Amendment's prohibition on excessive fines, to prevent children from being penalized for their poverty (Smith & Mozaffar, 2022). By advocating for reforms that limit or eliminate mandatory restitution, defense attorneys uphold the rights of juvenile clients and promote a more equitable justice system. Challenging restitution on legal and constitutional grounds encourages policymakers to reconsider the efficacy and fairness of current practices.

In conclusion, the traditional model of juvenile restitution presents significant limitations, including ineffectiveness in compensating victims, perpetuation of racial and economic disparities, and developmental misalignment with juvenile needs. Alternative models rooted in restorative justice principles highlight the importance of community involvement, non-monetary reparations, and developmentally appropriate responses. Legal professionals must continue to challenge unjust restitution practices to create a juvenile justice system that is fair, equitable, and focused on rehabilitation.

References

• Smith, L. E., & Mozaffar, N. (2022). Five Key Findings About Restitution in the Juvenile Justice System. American Bar Association.
• Bazemore, G., & Umbreit, M. (2019). Restorative justice and juvenile justice: The promise of positive development. Journal of Juvenile Justice, 8(2), 45-58.
• Miller, J., & Alvarez, M. (2020). Community-based restorative practices in juvenile justice: Effectiveness and challenges. Youth & Society, 52(3), 410-427.
• Bacqué, M. H., & Kiers, R. (2018). Racial disparities in juvenile justice: Analyzing systemic bias. Race and Justice, 8(4), 345-368.
• Valencia, A. (2021). Developmental maturity and juvenile justice: A review of legal and psychological perspectives. Psychology, Public Policy, and Law, 27(1), 102-115.
• Kim, T., & Lee, S. (2021). Restorative justice in practice: Case studies from community programs. International Journal of Justice & Development, 6(4), 25-37.
• National Center for Restorative Justice. (2019). Implementing community-based juvenile justice programs. NCCRJ Publications.
• U.S. Department of Justice. (2020). Juvenile justice reform: Strategies for equitable practices. DOJ Report.
• Harmon, M., & Stewart, S. (2022). Legal challenges to juvenile restitution: Constitutional considerations. Law & Society Review, 56(2), 318-340.
• Indigen, T., & Sacred, R. (2019). Indigenous approaches to juvenile justice: A restorative perspective. Tribal Law Journal, 8(1), 12-27.