June 11, 2014, Introduced by Senators PAPPAGEORGE, NOFS, COLBECK, ROBERTSON, CASWELL, HUNE and MARLEAU and referred to the Committee on Judiciary.
A bill to amend 1985 PA 87, entitled
"William Van Regenmorter crime victim's rights act,"
by amending sections 44 and 45 (MCL 780.794 and 780.795), section
44 as amended by 2013 PA 139 and section 45 as amended by 1996 PA
562.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 44. (1) As used in this section only:
(a) "Offense" means a violation of a penal law of this state
or a violation of an ordinance of a local unit of government of
this state punishable by imprisonment or by a fine that is not a
civil fine.
(b) "Victim" means an individual who suffers direct or
threatened physical, financial, or emotional harm as a result of
the commission of an offense. As used in subsections (2), (3), (6),
(8), (9), and (13) only, victim includes a sole proprietorship,
partnership, corporation, association, governmental entity, or any
other legal entity that suffers direct physical or financial harm
as a result of an offense.
(2) Except as provided in subsection (8), at the dispositional
hearing or sentencing for an offense, the court shall order, in
addition to or in lieu of any other disposition or penalty
authorized by law, that the juvenile make full restitution to any
victim of the juvenile's course of conduct that gives rise to the
disposition or conviction or to the victim's estate. For an offense
that is resolved informally by means of a consent calendar
diversion or by another informal method that does not result in a
dispositional hearing, by assignment to youthful trainee status, by
a delayed sentence or deferred judgment of guilt, or in another way
that is not an acquittal or unconditional dismissal, the court
shall order the restitution required under this section.
(3) If an offense results in damage to or loss or destruction
of property of a victim of the offense or results in the seizure or
impoundment of property of a victim of the offense, the order of
restitution shall require that the juvenile do 1 or more of the
following, as applicable:
(a) Return the property to the owner of the property or to a
person designated by the owner.
(b) If return of the property under subdivision (a) is
impossible, impractical, or inadequate, pay an amount equal to the
greater of subparagraph (i) or (ii), less the value, determined as of
the date the property is returned, of that property or any part of
the property that is returned:
(i) The fair market value of the property on the date of the
damage,
loss, or destruction. However, if If the fair market value
of the property cannot be determined or is impractical to
ascertain,
then the replacement value of the property shall be
utilized in lieu of the fair market value.
(ii) The fair market value of the property on the date of
disposition.
However, if If the fair market value of the property
cannot
be determined or is impractical to ascertain, then the
replacement value of the property shall be utilized in lieu of the
fair market value.
(c) Pay the costs of the seizure or impoundment, or both.
(4) If an offense results in physical or psychological injury
to a victim, the order of restitution shall require that the
juvenile do 1 or more of the following, as applicable:
(a) Pay an amount equal to the reasonably determined cost of
medical and related professional services and devices actually
incurred and reasonably expected to be incurred relating to
physical and psychological care.
(b) Pay an amount equal to the reasonably determined cost of
physical and occupational therapy and rehabilitation actually
incurred and reasonably expected to be incurred.
(c) Reimburse the victim or the victim's estate for after-tax
income loss suffered by the victim as a result of the offense.
(d) Pay an amount equal to the reasonably determined cost of
psychological and medical treatment for members of the victim's
family actually incurred or reasonably expected to be incurred as a
result of the offense.
(e) Pay an amount equal to the reasonably determined costs of
homemaking and child care expenses actually incurred or reasonably
expected to be incurred as a result of the offense or, if
homemaking or child care is provided without compensation by a
relative, friend, or any other person, an amount equal to the costs
that would reasonably be incurred as a result of the offense for
that homemaking and child care, based on the rates in the area for
comparable services.
(f) Pay an amount equal to the cost of actual funeral and
related services.
(g) If the deceased victim could be claimed as a dependent by
his or her parent or guardian on the parent's or guardian's
federal, state, or local income tax returns, pay an amount equal to
the loss of the tax deduction or tax credit. The amount of
reimbursement shall be estimated for each year the victim could
reasonably be claimed as a dependent.
(h) Pay an amount equal to income actually lost by the spouse,
parent, sibling, child, or grandparent of the victim because the
family member left his or her employment, temporarily or
permanently, to care for the victim because of the injury.
(5) If an offense resulting in bodily injury also results in
the death of a victim or serious impairment of a body function of a
victim, the court may order up to 3 times the amount of restitution
otherwise allowed under this section. As used in this subsection,
"serious impairment of a body function of a victim" includes, but
is not limited to, 1 or more of the following:
(a) Loss of a limb or use of a limb.
(b) Loss of a hand or foot or use of a hand or foot.
(c) Loss of an eye or use of an eye or ear.
(d) Loss or substantial impairment of a bodily function.
(e) Serious visible disfigurement.
(f) A comatose state that lasts for more than 3 days.
(g) Measurable brain damage or mental impairment.
(h) A skull fracture or other serious bone fracture.
(i) Subdural hemorrhage or subdural hematoma.
(j) Loss of a body organ.
(6) If the victim or victim's estate consents, the order of
restitution may require that the juvenile make restitution in
services in lieu of money.
(7) If the victim is deceased or dies, the court shall order
that the restitution or remaining restitution be made to those
entitled to inherit from the victim's estate.
(8) The court shall order restitution to the crime victim
services commission or to any individuals, partnerships,
corporations, associations, governmental entities, or other legal
entities that have compensated the victim or the victim's estate
for a loss incurred by the victim to the extent of the compensation
paid for that loss. The court shall also order restitution for the
costs of services provided to persons or entities that have
provided services to the victim as a result of the offense.
Services that are subject to restitution under this subsection
include, but are not limited to, shelter, food, clothing, and
transportation.
However, an An order of restitution shall require
that all restitution to a victim or victim's estate under the order
be made before any restitution to any other person or entity under
that order is made. The court shall not order restitution to be
paid to a victim or victim's estate if the victim or victim's
estate has received or is to receive compensation for that loss,
and the court shall state on the record with specificity the
reasons for its action.
(9) Any amount paid to a victim or victim's estate under an
order of restitution shall be set off against any amount later
recovered as compensatory damages by the victim or the victim's
estate in any federal or state civil proceeding and shall reduce
the amount payable to a victim or a victim's estate by an award
from the crime victim services commission made after an order of
restitution under this section.
(10) If not otherwise provided by the court under this
subsection,
restitution shall be made immediately. However, the The
court may require that the juvenile make restitution under this
section within a specified period or in specified installments.
(11) If the juvenile is placed on probation, any restitution
ordered under this section shall be a condition of that probation.
The court may revoke probation if the juvenile fails to comply with
the order and if the juvenile has not made a good faith effort to
comply with the order. In determining whether to revoke probation,
the court shall consider the juvenile's employment status, earning
ability, and financial resources, the willfulness of the juvenile's
failure to pay, and any other special circumstances that may have a
bearing on the juvenile's ability to pay.
(12) Subject to subsection (18), a juvenile who is required to
pay restitution and who is not in willful default of the payment of
the restitution may at any time petition the court to modify the
method of payment. If the court determines that payment under the
order will impose a manifest hardship on the juvenile or his or her
immediate family, and if the court also determines that modifying
the method of payment will not impose a manifest hardship on the
victim, the court may modify the method of payment.
(13) An order of restitution entered under this section
remains effective until it is satisfied in full. An order of
restitution is a judgment and lien against all property of the
individual ordered to pay restitution for the amount specified in
the order of restitution. The lien may be recorded as provided by
law. An order of restitution may be enforced by the prosecuting
attorney, a victim, a victim's estate, or any other person or
entity named in the order to receive the restitution in the same
manner as a judgment in a civil action or a lien.
(14) Notwithstanding any other provision of this section, a
juvenile shall not be detained or imprisoned for a violation of
probation or parole or otherwise for failure to pay restitution as
ordered under this section unless the court determines that the
juvenile has the resources to pay the ordered restitution and has
not made a good faith effort to do so.
(15)
If Except as otherwise
provided in this subsection, if
the court determines that the juvenile is or will be unable to pay
all of the restitution ordered, after notice to the juvenile's
parent or parents and an opportunity for the parent or parents to
be heard, the court may order the parent or parents having
supervisory responsibility for the juvenile at the time of the acts
upon which an order of restitution is based to pay any portion of
the restitution ordered that is outstanding. The court shall not
order the juvenile's parent, or if the parent is married, the
parent's spouse with whom the parent resides, to pay restitution
under this section if that parent was the victim of the juvenile
offense for which restitution is ordered. An order under this
subsection does not relieve the juvenile of his or her obligation
to pay restitution as ordered, but the amount owed by the juvenile
shall be offset by any amount paid by his or her parent. As used in
this subsection, "parent" does not include a foster parent.
(16) If the court orders a parent to pay restitution under
subsection (15), the court shall take into account the parent's
financial resources and the burden that the payment of restitution
will impose, with due regard to any other moral or legal financial
obligations the parent may have. If a parent is required to pay
restitution under subsection (15), the court shall provide for
payment to be made in specified installments and within a specified
period of time.
(17) A parent who has been ordered to pay restitution under
subsection (15) may petition the court for a modification of the
amount of restitution owed by the parent or for a cancellation of
any unpaid portion of the parent's obligation. The court shall
cancel all or part of the parent's obligation due if the court
determines that payment of the amount due will impose a manifest
hardship on the parent and if the court also determines that
modifying the method of payment will not impose a manifest hardship
on the victim.
(18) In each case in which payment of restitution is ordered
as a condition of probation, the court shall order any employed
juvenile to make regularly scheduled restitution payments. If the
juvenile misses 2 or more regularly scheduled payments, the court
shall order the juvenile to execute a wage assignment to pay the
restitution. The juvenile caseworker or probation officer assigned
to the case shall review the case not less than twice yearly to
ensure that restitution is being paid as ordered. If the
restitution was ordered to be made within a specific period of
time, the juvenile caseworker or probation officer assigned to the
case shall review the case at the end of the specific period of
time to determine if the restitution has been paid in full. The
final review shall be conducted not less than 60 days before the
probationary period expires. If the juvenile caseworker or
probation officer determines at any review the restitution is not
being paid as ordered, the juvenile caseworker or probation officer
shall file a written report of the violation with the court on a
form prescribed by the state court administrative office or shall
petition the court for a probation violation. The report or
petition shall include a statement of the amount of the arrearage,
and any reasons for the arrearage known by the juvenile caseworker
or probation officer. The juvenile caseworker or probation officer
shall immediately provide a copy of the report or petition to the
prosecuting attorney. If a petition or motion is filed or other
proceedings are initiated to enforce payment of restitution and the
court determines that restitution is not being paid or has not been
paid as ordered by the court, the court shall promptly take action
necessary to compel compliance.
(19) If the court determines that an individual who is ordered
to pay restitution under this section is remanded to the
jurisdiction of the department of corrections, the court shall
provide a copy of the order of restitution to the department of
corrections when the court determines that the individual is
remanded to the department's jurisdiction.
(20) The court shall not impose a fee on a victim, victim's
estate, or prosecuting attorney for enforcing an order of
restitution.
(21) If a person or entity entitled to restitution under this
section cannot be located, refuses to claim the restitution within
2 years after the date on which he or she could have claimed the
restitution, or refuses to accept the restitution, the restitution
to which that person or entity is entitled shall be deposited in
the crime victim's rights fund created under section 4 of 1989 PA
196,
MCL 780.904, or its successor fund. However, a A person
or
entity entitled to that restitution may claim that restitution any
time by applying to the court that originally ordered and collected
it. The court shall notify the crime victim services commission of
the application and the commission shall approve a reduction in the
court's revenue transmittal to the crime victim's rights fund equal
to the restitution owed to the person or entity. The court shall
use the reduction to reimburse that restitution to the person or
entity.
(22) The court may amend an order of restitution entered under
this section on a motion by the prosecuting attorney, the victim,
or the defendant based upon new information related to the injury,
damages, or loss for which the restitution was ordered.
(23) A court that receives notice that a defendant who has an
obligation to pay restitution under this section has declared
bankruptcy shall forward a copy of that notice to the prosecuting
attorney. The prosecuting attorney shall forward the notice to the
victim at the victim's last known address.
(24) If the victim is a minor, the order of restitution shall
require the defendant to pay to a parent of the victim an amount
that is determined to be reasonable for any of the following that
are actually incurred or reasonably expected to be incurred by the
parent as a result of the crime:
(a) Homemaking and child care expenses.
(b) Income loss not ordered to be paid under subsection
(4)(h).
(c) Mileage.
(d) Lodging or housing.
(e) Meals.
(f) Any other cost incurred in exercising the rights of the
victim or a parent under this act.
Sec. 45. (1) In determining the amount of restitution to order
under section 44, the court shall consider the amount of the loss
sustained by any victim as a result of the offense. In determining
whether to order the juvenile's supervisory parent to pay
restitution under section 44(15), the court shall consider the
financial resources of the juvenile's supervisory parent and the
other factors specified in section 44(16). The court shall not
order the juvenile's parent, or if the parent is married, the
parent's spouse with whom the parent resides, to pay restitution
under this section if that parent was the victim of the juvenile
offense for which restitution is ordered.
(2) The court may order the person preparing a report for the
purpose of disposition to obtain information pertaining to the
factors set forth in subsection (1). That person shall include the
information collected in the disposition report or in a separate
report, as the court directs.
(3) The court shall disclose to the juvenile, the juvenile's
supervisory parent, and the prosecuting attorney all portions of
the disposition or other report pertaining to the matters described
in subsection (1).
(4) Any dispute as to the proper amount or type of restitution
shall be resolved by the court by a preponderance of the evidence.
The burden of demonstrating the amount of the loss sustained by a
victim as a result of the offense shall be on the prosecuting
attorney. The burden of demonstrating the financial resources of
the juvenile's supervisory parent and the other factors specified
in section 44(16) shall be on the supervisory parent.
Enacting section 1. This amendatory act is retroactive and
applies to orders of restitution entered before the effective date
of this amendatory act.