Updated on October 24, 2021
The Criminal Restitution Statutes: Severing the Problematic Portions to Protect the Right to a Jury
Sarah Schmitz, Staff Editor
State v. Arnette, No. 112,572, (Kan. Oct. 15, 2021). https://www.kscourts.org/KSCourts/media/KsCourts/Opinions/112572_3.pdf?ext=.pdf
Issue: Under Kan. Stat. Ann. § 21-6604(b)(2) and Kan. Stat. Ann. § 22-3424(d)(1), criminal restitution shall be collected and enforced as a civil judgment pursuant to Kan. Stat. Ann. §§ 60-4301–4304.1 Do these criminal restitution statutes violate section 5 of the Kansas Constitution Bill of Rights by bypassing the traditional function of the jury to determine civil damages?
Answer: Yes.
Facts: Arnette was charged and pled guilty to conspiracy to commit burglary. The district court ordered her to pay—jointly and severally with the co-defendants—$33,248.83 in restitution. Arnette appealed the restitution order, arguing that it violated her right to a jury under section 5 of the Kansas Bill of Rights.
Discussion: As seen in Kan. Stat. Ann. § 21-6604(b)(2) and Kan. Stat. Ann. § 60-4301, a judge decides the amount of restitution to be paid to the victims, and that amount is enforced as a civil judgment. Thus, this process of the judge ordering restitution bypasses the traditional function of the jury to determine civil damages. This bypass implicates the section 5 of the Kansas Bill of Rights, which provides “[t]he right of trial by jury shall be inviolate.”
As a result, the problematic portions of the statutes must be severed. The Kansas Supreme Court held the following statutes unconstitutional: Kan. Stat. Ann. § 60-4301; Kan. Stat. Ann. § 60-4302; Kan. Stat. Ann. § 60-4303; Kan. Stat. Ann. § 21-6604(b)(2); and the last sentence of Kan. Stat. Ann. § 22-3424(d)(1). Restitution may still be ordered by a judge, but it will not be collected and enforced as a civil judgment. A criminal defendant may only be faced with a civil judgment for restitution if that judgment was awarded through a civil cause of action.
Key Authorities:
Kan. Stat. Ann. § 21-6604(b)(2) (Supp. 2020).
Kan. Stat. Ann. § 22-3424(d)(1).
State v. Robinson, No. 120,903, (Kan. Oct. 15, 2021).
