New Opportunities for Counsel as Victims’ Rights Expand

Former DA Mike Mullins speaks on Civil Restitution

By Daryl Reese


Santa Rosa, May 5, 2011—What’s the role of an attorney representing victims in the criminal justice process? Historically it has been limited—but the California Constitution now provides victims with the right to be represented by retained attorneys, and “there appears to be no limit” to the rights and restitution available to victims, said J. Michael Mullins in his Sonoma County Bar Association presentation, Restitution, Where Civil and Criminal Meet, Civilly.

Victims’ rights include the right to receive from the district attorney, upon request, protective orders, safety in bail and release, notice of hearings, charges, extradition, disposition of the case and whether or not the defendant is up for parole or has escaped.

As county budgets shrink and victims’ rights are enlarged, the capacity of the District Attorney’s office to address the increasing gap will continue to create a strain. Further, while the rights of direct victims have increased, so too have the rights of indirect victims. The definition of victim “has been broadened,” Mullins said. The category now includes “anyone who suffers physical, psychological or financial harm, including spouse, parents, siblings, guardians, and deceased representatives.”

But the list goes on to include anyone who has suffered a loss, especially an economic loss. For example, in a Santa Cruz case involving animal abuse, the local humane society sought and received restitution for costs associated with caring for approximately 80 dogs the defendant had mistreated. In a juvenile case involving property damage to a school, the court awarded restitution costs to the school for the wages of custodial staff to repair the damage.

Economic restitution can be considerable, and while it raises some questions regarding the role of civil remedies versus criminal restitution, courts are ruling in favor of restitution costs that cover losses such as medical expenses, relocation expenses, lost wages, loss of use, and even attorney’s fees. In some regards, “restitution has become another civil hearing,” Mullins said. However, “prosecutors and criminal courts are not prepared to deal with civil issues.”

A key difference between civil damages and restitution is that restitution is an “order” and not a “judgment.” Consequently, among other differences, restitution orders are not dischargeable in bankruptcy, do not have enforcement time limits, and in juvenile cases, parents are jointly and severally liable “forever.”

“Restitution is an absolute right of victims absent extraordinary and compelling reasons,” said Mullins. Will we see more retained legal representation as a result? “Yes,” he said. The rights of victims will continue to increase, resulting in victims’ increased influence in the entire criminal justice process.

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