By Hendley Badcock
If you catch a person stealing from you, you probably expect her to pay you back, whether or not you take the theft to the police.
But in embezzlement cases, trying to ensure that offenders pay back what they stole is a big issue.
“It takes years and years,” Buena Vista Commonwealth’s Attorney Chris Russell said.
And that’s probably the best a victim can hope for. In many cases, victims never see a cent of what they lost.
Restitution – paying back what the embezzler took – is almost always part of an embezzler’s sentence. Typically, an offender will get a prison sentence, but some of that commonly is suspended.
Once the offender is released, she enters probation, during which she is expected to pay restitution to the victim, often in monthly increments. If the offender does not pay, she risks going back to prison and serving the remainder of her sentence.
“They’ve made this promise to make their victim whole,” Staunton Commonwealth’s Attorney Ray Robertson said. “If they don’t live up to that promise, they go back in.”
Prosecutors and legal experts cite a number of reasons why offenders often fail to pay restitution, despite the threat of never-ending probation and imprisonment.
For one, the courts realize that some offenders cannot pay back what they took.
“If you’re unable to pay, you really can’t do anything about it,” Dean of Washington and Lee University’s School of Law Nora Demleitner said.
When it comes down to sending those embezzlers back to prison, most judges drag their feet.
Judges want to get the offender back on track. They want the restitution paid, and they understand that keeping the offender in prison won’t solve the problem.
But it’s hard for anyone to find a job after a felony conviction, particularly after serving time in prison.
The offender might have the ability and experience to make a good wage, Demleitner said.
“But are you going to hire her as a bookkeeper?” she asked. “No, and neither will I . . . . It’s going to be hard to get a job even as a stocking assistant at Kroger for this person. So how is she going to be paying anything back?”
Prosecutors know the difficulties involved with restitution. They often negotiate with offenders and with the court.
“A lot of times if the amount of embezzlement . . . isn’t so great, we’ll work them, especially if they did it out of need to feed their family and clothe their family and things like that,” Robertson said.
For example, Robertson said he does not mind reducing the charge to a misdemeanor if the amount stolen isn’t that much over $200.
“[That] makes it a lot easier to get and maintain a job in the future if they pay that restitution,” he said.
In other instances, judges might even arrange a work-release program from prison for offenders who are not paying.
“This is more typical with men, for some reason,” Russell said. “The jail takes them out to the truck stop and they do maintenance or whatever out there and then the money that they earn goes directly into the court’s account.”
Women might not get the same opportunity, though, because work-release programs often require hard physical work.
“You think of storage facilities, warehouse facilities, and much more likely they’ll hire men for these types of jobs,” Demleitner said. “That would be my suspicion — for relatively not-so-educated people with a criminal record, there are still more jobs for men in that area.”
Most embezzlers have to work to make restitution because they have nothing left of the money they took by the time they are caught. They seldom buy houses or other expensive items that can be confiscated or resold.
When the embezzler makes no effort at all, it is not unheard of for her to be taken to prison again.
“[For] the ones that do go back, it’s not for very long,” Russell said. “It might be for 60 days just to send a message like, ‘You haven’t done nearly enough, made nearly enough effort, so you’re going to have to go back for a short time and then get going.’”
So, who is keeping track of what is and isn’t paid?
Oversight of restitution falls outside the law, Demleitner says.
“The law just says you have to pay restitution and if you don’t pay restitution, it can be a violation of your probation or parole condition,” Demleitner said. “Everything else is an administrative structure.”
An offender makes payments to the clerk of the court, not the victim. Her probation officer checks in with the offender to make sure she is making payments.
Either the probation officer or the victim can report a violation in restitution. But it is unclear how many of these reports are made and if anyone responds to them.
“I’m not surprised that some offices are really on top of it and others probably don’t quite know what they’re doing,” Demleitner said.
Unpaid restitution is a problem acknowledged nationwide. Demleitner said one attempt to mitigate the problem was known as day fines. Tried by four states in the 1980s, it mimicked programs begun in Sweden and Germany.
Demleitner said that a person’s day fine is tied to his or her income level.
“It actually becomes feasible for people to pay the fines and the restitution,” she said. But Americans’ notion of equality makes them leery of sliding-scale paybacks.
“I mean, I’m charging someone who makes a million dollars a much higher fine, for example, than I’m asking from someone . . . who makes $10,000 a year,” Demleitner said. “On some level, the paying would be on the same, but the perception clearly is very different.”
And the victim might still see only a small fraction of what was taken if the embezzled amount was large and the offender’s income is small.
Demleitner says a better solution might be a national victims fund.
“You have people pay fines in part to [the fund],” she said. “Then you can equalize between people who can’t get anything and people who can get something.”
For now, the court and the victims will have to accept how much or how little offenders are able to pay.
Need, after all, is what drives many of these women to embezzle in the first place.
“I see a lot of people who are up against it financially and think that somehow they’ll be able to repay,” Robertson said.
Betsy Cribb and Krysta Huber contributed to this story.