Introduction
In 2008, a Bay Area, California, teen took the keys to another person’s car, driving it around the block before running into a pedestrian crossing pole.
A juvenile court judge ordered the teen to serve sixty-nine days in a juvenile detention facility and to pay $8,398 in restitution to cover the cost of towing and junking, a new driver’s license, and replacement of the car.
When the young person turned eighteen, the juvenile court sent their family a copy of the restitution order and an abstract of judgment outlining the amount of restitution still due, nearly all of which had yet to be paid. Meanwhile, the court told the car-owning family they could pursue collection on their own, hire a private collection agent, or use the county collection agency (which would take 30% of any amount collected to cover their costs).
The court’s order was both financially devastating for the teen and ineffective for the victims/harmed family.
The young person entered adulthood with over $9,000 in debt as the amount grew due to the accumulation of interest.
The car-owning family lived without a vehicle for over a year, with the parents struggling to make it to work or drop off and pick up their kids from school and childcare. Further, the harmed family ultimately received nothing in compensation, since the young person did not have any income or assets that would have allowed them to pay the amount ordered.
This situation is from one case, but it has played out numerous times across the country. Nationally, it’s estimated that approximately 500,000 young people
and their families face the potential consequences of restitution each year, as all states and territories authorize the imposition of restitution against youth whose actions result in economic loss or injury.
In California alone, approximately 12,200 youth annually are ordered to pay restitution for harm caused.
Analyzing original data, composed of hundreds of records gathered from public records requests sent to 117 entities, including juvenile courts, that handle youth restitution orders in California’s fifty-eight counties, this Article is the first critical examination of whether youth restitution achieves its purported goals. Using California as a case study, the Article finds that the system of youth restitution is not just broken but likely failing to meet all three of its purported objectives: rehabilitation, deterrence, and victim reparation.
Young people ordered to pay restitution and their families are tied to insurmountable and continually growing debt—often for the rest of their lives—that only exacerbates and prolongs the collateral consequences of system contact. Under California law, payment of restitution is a condition of probation.
When left unpaid, the debt can turn into a civil judgment,
enforceable through wage garnishment, tax refund intercept, and bank levy.
Unlike other types of debt, restitution does not benefit from any fair collection protections, including prohibitions against deceptive or misleading representations in the collection of such debt, and the application of a statute of limitations on collection “varies by jurisdiction.”
Restitution is also not dischargeable in bankruptcy
and is legally enforceable in perpetuity.
Ordering youth to pay restitution when they cause harm does not deter future delinquent behavior, but it does exacerbate drivers of harm and crime.
Research on adolescent brain development shows that youth as a group do not weigh the costs and benefits of their actions in ways that deterrence theories presume.
Additionally, many youth in the system are low-income or come from historically marginalized and underresourced communities and may be more likely to commit a crime out of desperation to meet their basic needs or to ensure their safety.
In fact, criminologists have found that youth with unpaid restitution tend to experience a higher rate of recidivism due to the pressure to pay off the debt.
And persons harmed are not receiving timely or adequate compensation because most court-involved youth cannot pay. Nonpayment of restitution can leave harmed persons with limited options. They must either navigate a heavily bureaucratic application process in the hopes of meeting the strict eligibility requirements for monetary support from state-run victim compensation programs, like the California Victim’s Compensation Board,
or wait and hope that the young person ordered to pay, or their family, will do so at some point.
For many, neither option bears results, and both leave persons harmed feeling hopeless and often retraumatized.
Notwithstanding the problems unearthed here, restitution has been largely absent from otherwise robust monetary sanction reform efforts in the last decade. In recent years, policymakers have increasingly recognized the harms and inefficiencies of monetary sanctions imposed by the juvenile and criminal legal systems.
But restitution continues to be carved out, both in law and in practice, as exceptional, with policymakers hesitant to abandon the practice because of its supposed potential to help harmed persons.
Yet it is the one monetary sanction that youth and adults alike cite as one of the greatest impediments in moving past their system involvement.
Like fines and fees, collection rates on restitution are low because most youth in the juvenile legal system come from low-income families.
In addition, the cost of collecting restitution often can be nearly as much as the amount collected from youth ordered to pay.
But unlike fines and fees, which are funneled to local or state budgets, restitution is meant to directly compensate people who experience loss or injury.
While the answer to reforming fines and fees has been to repeal statutory authority that allows the charging of such monetary sanctions, eliminating restitution without an alternative means of compensation may contribute to ongoing trauma and harm for already struggling families and communities.
In the absence of restitution reform, the primary lifeline for harmed persons and involved youth alike has come in the form of occasional debt relief and temporary pilot programs. For example, on Mother’s Day in 2023, Kim Kardashian and Michael Rubin paid off fifty mothers’ restitution debts.
Other reforms have taken the form of pilot programs. San Francisco piloted the Aims to Foster Transformation & Ensure Restitution program for youth in its juvenile system in 2022.
Through the program, young people make amends for harm they’ve caused by participating in restorative justice conferences, performing community service, or being connected to job opportunities. The person harmed is simultaneously paid restitution from a community fund—funded by a philanthropic organization—and can participate in other services available to support them.
But relying on charitable contributions and philanthropic experimentation is not only a haphazard, nonscalable solution, it also maintains the current system of restitution.
To engage critically with the structural limitations of youth restitution, this Article offers a reimagining of the youth restitution system that better aligns with its the professed goals—one that seeks to address harm without relying on punishment and incarceration. Specifically, states, including California, must invest in harm prevention and youth healing to break the cycle of violence and trauma that often drives youth to cause harm in the first place. Youth should be offered developmentally appropriate, culturally responsive, and nonmonetary means of making amends for harm caused, and harmed parties should receive access to needed supports, including direct compensation that does not rely on payment from youth and families.
This Article proceeds as follows. Part I provides an overview of the origins of restitution and its use in the juvenile system, particularly its development alongside the victims’ rights movement in the 1980s and “super-predator” era of the 1990s. Part II uses California as a case study to understand how the youth restitution system works in practice. It describes the origins of restitution in California’s juvenile system, its purported goals, and its operation under existing law before presenting original court and agency data on youth restitution assessment and collection practices gathered through Public Records Act requests. Part III presents three primary findings about how the youth restitution system, as evidenced by California’s, is working in stark contrast to its purported goals: The current restitution system impedes youth rehabilitation by extending the collateral consequences of system contact, does not deter delinquent behavior or promote public safety, exacerbates drivers of harm and crime, and is unable to provide redress and healing for persons harmed because youth are largely unable to pay restitution. Part IV proposes a reimagining of the youth restitution system to more effectively address harm and achieve restoration for all involved before closing with an examination of real and potential objections to such an overhaul.