Money and the Law: Restitution, a Key Element of the Criminal Justice System | Company

An important part of our criminal justice system involves restitution. According to the Colorado General Assembly, a person guilty of a criminal act causing damage has both a “moral and legal obligation to make full restitution to those injured by their conduct.”

And, according to the General Assembly (although reasonable minds may differ on this point), “restitution will help the offender to reintegrate as a productive member of society”.

Anyway, Colorado has a complex law dealing with restitution. This law states that at the time of sentencing, a judge must consider the issue of restitution and the prosecutor must assist by providing the information the judge will need to make a reasoned and considered decision.

Under restitution law, “victim” is broadly defined to include not only a direct victim of the defendant’s conduct, but also indirect victims, including an insurance company which, under an insurance policy, made a payment to the direct victim. In March, the Colorado Court of Appeals had to deal with such a case, arising from a bizarre set of circumstances. A man named Arnold Martinez attempted to steal a bicycle from a residential garage. It wasn’t just any old bike, it was a $6,000 bike. (The garage was in Boulder…) As Martinez was pedaling the bike, the owner jumped into his car and chased him. The owner caught up to Martinez and spun his car in front of him, at which point Martinez crashed into the bike owner’s car. The bike, interestingly, was undamaged. However, the bike owner’s car was damaged, requiring $2,393.84 in repairs.

The bike owner’s auto insurance company, GEICO, paid $1,893.84 of that amount (the cost of the repair minus a $500 deductible). GEICO then claimed he was a “victim” under the restitution law, which resulted in a restitution order against Martinez, who had pleaded guilty to various crimes.

Martinez, even though you would have thought he had bigger things to worry about, challenged the restitution order. He argued, first, that a 2000 amendment to the Restitution Act excluded insurance companies from the definition of “victim”. This argument did not work, but it took the Court of Appeal many pages in its opinion to say why.

Martinez’s other argument was more interesting. He said he did not cause any damage to the bike owner’s vehicle. What caused the damage, he said, was the owner turning around in front of him. This argument also did not fly. However, the court again had to devote many pages to explaining its decision.

Basically, the court had to discuss how the law deals with causation in a traffic accident. This included an explanation of “proximate cause,” a concept that has baffled law students (and judges) since the dawn of time. For a person to be the “proximate cause” of an accident, the accident must have been “reasonably foreseeable” for the person whose conduct allegedly caused the accident.

The Court of Appeals, looking for a way out of this legal quicksand, ultimately concluded that it was reasonably foreseeable for Martinez to crash into the bike owner’s car in a circumstance where he stole the bike and was walking away. Therefore, he was the proximate cause of the accident and restitution was an appropriate part of his conviction.

Along with other details of restitution law that I found interesting, debt resulting from a restitution order cannot be discharged by filing for bankruptcy and there is no statute of limitations. However, two years after the death of an accused, the restitution order can be revoked.

As you might expect, collecting a restitution order can be difficult, especially if the defendant is in jail. However, the sentencing court has several tools to prosecute the defendant until the restitution ordered is paid, including wage garnishments, liens on property, and tax refunds.

Jim Flynn is with the Colorado Springs company of Flynn & Wright LLC. You can contact him at