HOUSE BILL No. 5866 April 9, 2002, Introduced by Reps. Palmer and Faunce and referred to the Committee on Civil Law and the Judiciary. A bill to amend 1927 PA 175, entitled "The code of criminal procedure," by amending section 1a of chapter IX (MCL 769.1a), as amended by 1998 PA 231. THE PEOPLE OF THE STATE OF MICHIGAN ENACT: 1 CHAPTER IX 2 Sec. 1a. (1) As used in this section, "victim" means an 3 individual who suffers direct or threatened physical, financial, 4 or emotional harm as a result of the commission of a felony, mis- 5 demeanor, or ordinance violation. For purposes of 6 subsections (2), (3), (6), (8), (9), and (13), victim includes a 7 sole proprietorship, partnership, corporation, association, gov- 8 ernmental entity, or any other legal entity that suffers direct 9 physical or financial harm as a result of a felony, misdemeanor, 10 or ordinance violation. 06895'02 TDR 2 1 (2) Except as provided in subsection (8), when sentencing a 2 defendant convicted of a felony, misdemeanor, or ordinance viola- 3 tion, the court shall order, in addition to or in lieu of any 4 other penalty authorized by law or in addition to any other pen- 5 alty required by law, that the defendant make full restitution to 6 any victim of the defendant's course of conduct that gives rise 7 to the conviction or to the victim's estate. 8 (3) If a felony, misdemeanor, or ordinance violation results 9 in damage to or loss or destruction of property of a victim of 10 the felony, misdemeanor, or ordinance violation or results in the 11 seizure or impoundment of property of a victim of the felony, 12 misdemeanor, or ordinance violation, the order of restitution may 13 require that the defendant do 1 or more of the following, as 14 applicable: 15 (a) Return the property to the owner of the property or to a 16 person designated by the owner. 17 (b) If return of the property under subdivision (a) is 18 impossible, impractical, or inadequate, pay an amount equal to 19 the greater of subparagraph (i) or (ii), less the value, deter- 20 mined as of the date the property is returned, of that property 21 or any part of the property that is returned: 22 (i) The value of the property on the date of the damage, 23 loss, or destruction. 24 (ii) The value of the property on the date of sentencing. 25 (c) Pay the cost of the seizure or impoundment, or both. 26 (4) If a felony, misdemeanor, or ordinance violation results 27 in physical or psychological injury to a victim, the order of 06895'02 3 1 restitution may require that the defendant do 1 or more of the 2 following, as applicable: 3 (a) Pay an amount equal to the REASONABLY DETERMINED cost of 4actualmedical and related professional services and devices 5 ACTUALLY INCURRED AND REASONABLY EXPECTED TO BE INCURRED relating 6 to physical and psychological care. 7 (b) Pay an amount equal to the REASONABLY DETERMINED cost of 8actualphysical and occupational therapy and rehabilitation 9 ACTUALLY INCURRED AND REASONABLY EXPECTED TO BE INCURRED. 10 (c) Reimburse the victim or the victim's estate for 11 after-tax income loss suffered by the victim as a result of the 12 felony, misdemeanor, or ordinance violation. 13 (d) Pay an amount equal to the REASONABLY DETERMINED cost of 14 psychological and medical treatment for members of the victim's 15 familythat has beenACTUALLY incurred AND REASONABLY EXPECTED 16 TO BE INCURRED as a result of the felony, misdemeanor, or ordi- 17 nance violation. 18 (e) Pay an amount equal to the REASONABLY DETERMINED cost of 19actualhomemaking and child care expenses ACTUALLY incurred AND 20 REASONABLY EXPECTED TO BE INCURRED as a result of the felony, 21 misdemeanor, or ordinance violation OR, IF HOMEMAKING OR CHILD 22 CARE IS PROVIDED WITHOUT COMPENSATION BY A RELATIVE, FRIEND, OR 23 ANY OTHER PERSON, AN AMOUNT EQUAL TO THE COSTS THAT WOULD REASON- 24 ABLY BE INCURRED AS A RESULT OF THE FELONY, MISDEMEANOR, OR ORDI- 25 NANCE VIOLATION FOR THAT HOMEMAKING AND CHILD CARE, BASED ON THE 26 RATES IN THE AREA FOR COMPARABLE SERVICES. 06895'02 4 1 (F)(5) If a felony, misdemeanor, or ordinance violation2resulting in bodily injury also results in the death of a victim,3the order of restitution may require that the defendant payPAY 4 an amount equal to the cost of actual funeral and related 5 services. 6 (G) IF THE DECEASED VICTIM COULD BE CLAIMED AS A DEPENDENT 7 BY HIS OR HER PARENT OR GUARDIAN ON THE PARENT'S OR GUARDIAN'S 8 FEDERAL, STATE, OR LOCAL INCOME TAX RETURNS, PAY AN AMOUNT EQUAL 9 TO THE LOSS OF THE TAX DEDUCTION OR TAX CREDIT. THE AMOUNT OF 10 REIMBURSEMENT SHALL BE ESTIMATED FOR EACH YEAR THE VICTIM COULD 11 REASONABLY BE CLAIMED AS A DEPENDENT. 12 (5) IF A FELONY, MISDEMEANOR, OR ORDINANCE VIOLATION RESULT- 13 ING IN BODILY INJURY ALSO RESULTS IN THE DEATH OF A VICTIM OR 14 SERIOUS IMPAIRMENT OF A BODY FUNCTION OF A VICTIM, THE COURT MAY 15 ORDER UP TO 3 TIMES THE AMOUNT OF RESTITUTION OTHERWISE ALLOWED 16 UNDER THIS SECTION. AS USED IN THIS SUBSECTION, SERIOUS IMPAIR- 17 MENT OF A BODY FUNCTION OF A VICTIM INCLUDES, BUT IS NOT LIMITED 18 TO, 1 OR MORE OF THE FOLLOWING: 19 (A) LOSS OF A LIMB OR USE OF A LIMB. 20 (B) LOSS OF A HAND OR FOOT OR USE OF A HAND OR FOOT. 21 (C) LOSS OF AN EYE OR USE OF AN EYE OR EAR. 22 (D) LOSS OR SUBSTANTIAL IMPAIRMENT OF A BODILY FUNCTION. 23 (E) SERIOUS VISIBLE DISFIGUREMENT. 24 (F) A COMATOSE STATE THAT LASTS FOR MORE THAN 3 DAYS. 25 (G) MEASURABLE BRAIN DAMAGE OR MENTAL IMPAIRMENT. 26 (H) A SKULL FRACTURE OR OTHER SERIOUS BONE FRACTURE. 06895'02 5 1 (I) SUBDURAL HEMORRHAGE OR SUBDURAL HEMATOMA. 2 (J) LOSS OF A BODY ORGAN. 3 (6) If the victim or the victim's estate consents, the order 4 of restitution may require that the defendant make restitution in 5 services in lieu of money. 6 (7) If the victim is deceased, the court shall order that 7 the restitution be made to the victim's estate. 8 (8) The court shall order restitution to the crime victim 9 services commission or to any individuals, partnerships, corpora- 10 tions, associations, governmental entities, or other legal enti- 11 ties that have compensated the victim or the victim's estate for 12 a loss incurred by the victim to the extent of the compensation 13 paid for that loss. The court shall also order restitution for 14 the costs of services provided to persons or entities that have 15 provided services to the victim as a result of the felony, misde- 16 meanor, or ordinance violation. Services that are subject to 17 restitution under this subsection include, but are not limited 18 to, shelter, food, clothing, and transportation. However, an 19 order of restitution shall require that all restitution to a 20 victim or a victim's estate under the order be made before any 21 restitution to any other person or entity under that order is 22 made. The court shall not order restitution to be paid to a 23 victim or victim's estate if the victim or victim's estate has 24 received or is to receive compensation for that loss, and the 25 court shall state on the record with specificity the reasons for 26 its action.If an entity entitled to restitution under this27subsection for compensating the victim or the victim's estate06895'02 6 1cannot or refuses to be reimbursed for that compensation, the2restitution paid for that entity shall be deposited by the state3treasurer in the crime victim's rights fund created under4section 4 of 1989 PA 196, MCL 780.904, or its successor fund.5 (9) Any amount paid to a victim or a victim's estate under 6 an order of restitution shall be set off against any amount later 7 recovered as compensatory damages by the victim or the victim's 8 estate in any federal or state civil proceeding and shall reduce 9 the amount payable to a victim or a victim's estate by an award 10 from the crime victim services commission made after an order of 11 restitution under this section. 12 (10) If not otherwise provided by the court under this sub- 13 section, restitution shall be made immediately. However, the 14 court may require that the defendant make restitution under this 15 section within a specified period or in specified installments. 16 (11) If the defendant is placed on probation or paroled or 17 the court imposes a conditional sentence under section 3 of this 18 chapter, any restitution ordered under this section shall be a 19 condition of that probation, parole, or sentence. The court may 20 revoke probation or impose imprisonment under the conditional 21 sentence and the parole board may revoke parole if the defendant 22 fails to comply with the order and if the defendant has not made 23 a good faith effort to comply with the order. In determining 24 whether to revoke probation or parole or impose imprisonment, the 25 court or parole board shall consider the defendant's employment 26 status, earning ability, and financial resources, the willfulness 27 of the defendant's failure to pay, and any other special 06895'02 7 1 circumstances that may have a bearing on the defendant's ability 2 to pay. 3 (12) A defendant who is required to pay restitution and who 4 is not in willful default of the payment of the restitution may 5 at any time petition the sentencing judge or his or her successor 6 to modify the method of payment. If the court determines that 7 payment under the order will impose a manifest hardship on the 8 defendant or his or her immediate family, AND IF THE COURT ALSO 9 DETERMINES THAT MODIFYING THE METHOD OF PAYMENT WILL NOT IMPOSE A 10 MANIFEST HARDSHIP ON THE VICTIM, the court may modify the method 11 of payment. 12 (13) An order of restitution entered under this section 13 remains effective until it is satisfied in full. An order of 14 restitution is a judgment and lien against all property of the 15 defendant for the amount specified in the order of restitution. 16 The lien may be recorded as provided by law. An order of resti- 17 tution may be enforced by the prosecuting attorney, a victim, a 18 victim's estate, or any other person or entity named in the order 19 to receive the restitution in the same manner as a judgment in a 20 civil action or a lien. 21 (14) Notwithstanding any other provision of this section, a 22 defendant shall not be imprisoned, jailed, or incarcerated for a 23 violation of probation or parole or otherwise for failure to pay 24 restitution as ordered under this section unless the court or 25 parole board determines that the defendant has the resources to 26 pay the ordered restitution and has not made a good faith effort 27 to do so. 06895'02 8 1 (15) IF THE COURT DETERMINES THAT A JUVENILE IS OR WILL BE 2 UNABLE TO PAY ALL OF THE RESTITUTION ORDERED, AFTER NOTICE TO THE 3 JUVENILE'S PARENT OR PARENTS AND AN OPPORTUNITY FOR THE PARENT OR 4 PARENTS TO BE HEARD, THE COURT MAY ORDER THE PARENT OR PARENTS 5 HAVING SUPERVISORY RESPONSIBILITY FOR THE JUVENILE AT THE TIME OF 6 THE ACTS UPON WHICH AN ORDER OF RESTITUTION IS BASED TO PAY ANY 7 PORTION OF THE RESTITUTION ORDERED THAT IS OUTSTANDING. AN ORDER 8 UNDER THIS SUBSECTION DOES NOT RELIEVE THE JUVENILE OF HIS OR HER 9 OBLIGATION TO PAY RESTITUTION AS ORDERED, BUT THE AMOUNT OWED BY 10 THE JUVENILE SHALL BE OFFSET BY ANY AMOUNT PAID BY HIS OR HER 11 PARENT OR PARENTS. AS USED IN THIS SUBSECTION: 12 (A) "JUVENILE" MEANS A PERSON WITHIN THE COURT'S JURISDIC- 13 TION UNDER SECTION 2D OR 4 OF CHAPTER XIIA OF THE PROBATE CODE OF 14 1939, 1939 PA 288, MCL 712A.2D AND 712A.4. 15 (B) "PARENT" DOES NOT INCLUDE A FOSTER PARENT. 16 (16) IF THE COURT ORDERS A PARENT TO PAY RESTITUTION UNDER 17 SUBSECTION (15), THE COURT SHALL TAKE INTO ACCOUNT THE PARENT'S 18 FINANCIAL RESOURCES AND THE BURDEN THAT THE PAYMENT OF RESTITU- 19 TION WILL IMPOSE, WITH DUE REGARD TO ANY OTHER MORAL OR LEGAL 20 FINANCIAL OBLIGATIONS THE PARENT MAY HAVE. IF A PARENT IS 21 REQUIRED TO PAY RESTITUTION UNDER SUBSECTION (15), THE COURT 22 SHALL PROVIDE FOR PAYMENT TO BE MADE IN SPECIFIED INSTALLMENTS 23 AND WITHIN A SPECIFIED PERIOD OF TIME. 24 (17) A PARENT WHO HAS BEEN ORDERED TO PAY RESTITUTION UNDER 25 SUBSECTION (15) MAY PETITION THE COURT FOR A MODIFICATION OF THE 26 AMOUNT OF RESTITUTION OWED BY THE PARENT OR FOR A CANCELLATION OF 27 ANY UNPAID PORTION OF THE PARENT'S OBLIGATION. THE COURT SHALL 06895'02 9 1 CANCEL ALL OR PART OF THE PARENT'S OBLIGATION DUE IF THE COURT 2 DETERMINES THAT PAYMENT OF THE AMOUNT DUE WILL IMPOSE A MANIFEST 3 HARDSHIP ON THE PARENT AND IF THE COURT ALSO DETERMINES THAT MOD- 4 IFYING THE METHOD OF PAYMENT WILL NOT IMPOSE A MANIFEST HARDSHIP 5 ON THE VICTIM. 6 (18)(15)In each case in which payment of restitution is 7 ordered as a condition of probation, the COURT MAY ORDER ANY 8 EMPLOYED DEFENDANT TO EXECUTE A WAGE ASSIGNMENT TO PAY THE 9 RESTITUTION. THE probation officer assigned to the case shall 10 review the case not less than twice yearly to ensure that resti- 11 tution is being paid as ordered. IF THE RESTITUTION WAS ORDERED 12 TO BE MADE WITHIN A SPECIFIC PERIOD OF TIME, THE PROBATION OFFI- 13 CER ASSIGNED TO THE CASE SHALL REVIEW THE CASE AT THE END OF THE 14 SPECIFIC PERIOD OF TIME TO DETERMINE IF THE RESTITUTION HAS BEEN 15 PAID IN FULL. The final review shall be conducted not less than 16 60 days before the probationary period expires. If the probation 17 officer determines AT ANY REVIEW that restitution is not being 18 paid as ordered, the probation officer shall file a written 19 report of the violation with the court on a form prescribed by 20 the state court administrative office OR SHALL PETITION THE COURT 21 FOR A PROBATION VIOLATION. The report OR PETITION shall include 22 a statement of the amount of the arrearage and any reasons for 23 the arrearage known by the probation officer. The probation 24 officer shall immediately provide a copy of the report OR 25 PETITION to the prosecuting attorney. If a PETITION OR motion is 26 filed or other proceedings are initiated to enforce payment of 27 restitution and the court determines that restitution is not 06895'02 10 1 being paid or has not been paid as ordered by the court, the 2 court shall promptly take action necessary to compel compliance. 3 (19)(16)If a defendant who is ordered to pay restitution 4 under this section is remanded to the jurisdiction of the depart- 5 ment of corrections, the court shall provide a copy of the order 6 of restitution to the department of corrections when the 7 defendant is ordered remanded to the department's jurisdiction. 8 (20) THE COURT SHALL NOT IMPOSE A FEE ON A VICTIM, VICTIM'S 9 ESTATE, OR PROSECUTING ATTORNEY FOR ENFORCING AN ORDER OF 10 RESTITUTION. 11 (21) IF A PERSON OR ENTITY ENTITLED TO RESTITUTION CANNOT BE 12 LOCATED OR REFUSES TO CLAIM THAT RESTITUTION WITHIN 2 YEARS AFTER 13 THE DATE ON WHICH HE OR SHE COULD HAVE CLAIMED THE RESTITUTION, 14 THE RESTITUTION PAID TO THAT PERSON OR ENTITY SHALL BE DEPOSITED 15 IN THE CRIME VICTIM'S RIGHTS FUND CREATED UNDER SECTION 4 OF 1989 16 PA 196, MCL 780.904, OR ITS SUCCESSOR FUND. HOWEVER, A PERSON OR 17 ENTITY ENTITLED TO THAT RESTITUTION MAY CLAIM THAT RESTITUTION 18 ANY TIME BY APPLYING TO THE COURT THAT ORIGINALLY ORDERED AND 19 COLLECTED IT. THE COURT SHALL NOTIFY THE CRIME VICTIM SERVICES 20 COMMISSION OF THE APPLICATION, AND THE COMMISSION SHALL APPROVE A 21 REDUCTION IN THE COURT'S REVENUE TRANSMITTAL TO THE CRIME VICTIM 22 RIGHTS FUND EQUAL TO THE RESTITUTION OWED TO THE PERSON OR 23 ENTITY. THE COURT SHALL USE THE REDUCTION TO REIMBURSE THAT RES- 24 TITUTION TO THE PERSON OR ENTITY. 06895'02 Final page. TDR