The New Illinois Constitutional Crime Victim Restitution Right: A Revolutionary Amendment?

27 DCBA Brief 26 (July 2015)

4 Pages Posted: 10 Jul 2015

See all articles by Jeffrey A. Parness

Jeffrey A. Parness

Northern Illinois University - College of Law

Date Written: July 9, 2015

Abstract

Before 1992, any crime victim restitution rights in Illinois were subject to General Assembly direction and, perhaps, some nonconstitutional common law developments. A 1992 Illinois constitutional amendment expressly recognized for crime victims “the right to restitution,” though this right was only “as provided by law,” meaning continuing, and perhaps now exclusive, General Assembly authority. A 2014 Illinois constitutional amendment removed the “as provided by law” language while explicitly recognizing that a crime victim “has standing to assert” the restitution right “in any court exercising jurisdiction over the case,” albeit as nonparty. The 2014 amendment did leave to the General Assembly the responsibility for defining crime “victims.” Further, the 2014 amendment largely left the victims to their own devises since the new restitution right is not to be “construed to alter the powers, duties, and responsibilities of the prosecuting attorney” and since the “court shall not appoint an attorney for the victim.” Yet the trial court is required under the 2014 amendment to “promptly rule on a victim’s request.”

Many questions regarding crime victim restitution arise under the 2014 amendment. One involves the types of court proceedings in which there are exercises of restitution jurisdiction. Another involves how the roles of the trial judges in such proceedings should change when crime victim restitution rights are asserted. And a third involves how assertions of the new constitutional crime victim restitution right will alter the balance between the public and private interests in criminal case sentencing and in related (e.g., civil asset forfeiture) matters.

The 2014 amendment to the Crime Victims’ Rights provisions within the Bill of Rights of the Illinois Constitution recognize a crime victim restitution right assertable at least within a criminal case, which requires a “prompt” ruling once asserted. This right demands greater judicial attention at both guilty plea and sentencing hearings. It also challenges trial judges to insure a fair allocation of a wrongdoer’s assets between public and private interests.

Keywords: restitution, crime victim, state constitution

Suggested Citation

Parness, Jeffrey A., The New Illinois Constitutional Crime Victim Restitution Right: A Revolutionary Amendment? (July 9, 2015). 27 DCBA Brief 26 (July 2015), Available at SSRN: https://ssrn.com/abstract=2628690

Jeffrey A. Parness (Contact Author)

Northern Illinois University - College of Law ( email )

Swen Parson Hall
DeKalb, IL 60115
United States

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