State v. N. R. L. ( 2013 )

222 October 3, 2013 No. 43
IN THE SUPREME COURT OF THE
STATE OF OREGON
In the Matter of N. R. L.,
a Youth.
STATE OF OREGON,
Respondent on Review,
v.
N. R. L.
Petitioner on Review.
(CC J090305; CA A144789; SC S060355)
En Banc
On review of a decision of the Court of Appeals.*
Argued and submitted March 11, 2013, at Lewis & Clark
College of Law, Portland, Oregon.
Christa Obold-Eshleman, of Youth, Rights and Justice,
Portland, argued the cause and filed the brief for petitioner
on review.
Cecil A. Reniche-Smith, Assistant Attorney General,
Salem, argued the cause and filed the brief for respondent
on review. With her on the brief were Ellen F. Rosenblum,
Attorney General, and Anna M. Joyce, Solicitor General.
Rankin Johnson IV, Portland, filed a brief for amicus
curiae Oregon Trial Lawyers Association.
Margaret Garven, Portland, filed a brief for amicus curiae
The National Crime Victim Law Institute. With her on the
brief was Amy C. Liu.
WALTERS, J.
The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.
______________
* Appeal from Washington County Circuit Court, Michele C. Rini, Judge.
249 Or App 321, 277 P3d 564 (2012).
Cite as 354 Or 222 (2013) 223
Walters, J., Defendant, a youth offender, appealed from the juvenile court’s
denial of defendant’s motion for a jury trial. Defendant argued that under Article I,
section 17, of the Oregon Constitution, he was entitled to a jury trial because
changes to the juvenile restitution statute, ORS 419C.450, had rendered it civil
in nature. Defendant argued that he was thus entitled to a jury trial to determine
the restitution he would be ordered to pay to the victim. The Court of Appeals
rejected defendant’s argument, holding that a juvenile offender’s obligation to pay
restitution is not civil in nature. Held: (1) The juvenile restitution statute, ORS
419C.450, is not civil in nature; (2) Article I, section 17, does not require a jury
trial in a proceeding to impose restitution under ORS 419C.450.
The decision of the Court of Appeals and the judgment of the circuit court
are affirmed.
224 State v. N. R. L.
WALTERS, J.
In this juvenile case, we consider whether Article I,
section 17, of the Oregon Constitution, which requires a
trial by jury in “all civil cases,” applies to a restitution deter-
mination in a juvenile delinquency proceeding. Youth argues
that he is entitled to a jury trial because recent constitutional
and statutory amendments have transformed the juvenile
restitution statute, ORS 419C.450, into a civil device through
which victims of crime can recover monetary damages for
their injuries. We hold that a restitution determination pur-
suant to ORS 419C.450 is not civil in nature and that
Article I, section 17, therefore does not require a jury trial
in youth’s case. For the reasons set out below, we affirm the
judgment of the trial court and the decision of the Court of
Appeals, which similarly had rejected youth’s argument.
State v. N. R. L., 249 Or App 321, 277 P3d 564 (2012).
The pertinent facts are not in dispute. Youth was
adjudicated delinquent after admitting that he unlawfully
had entered a warehouse and damaged property—acts that,
if committed by an adult, would constitute second-degree
burglary and first-degree criminal mischief. Before the dis-
positional hearing, youth moved for a jury trial, arguing
that, under Article I, section 17, he was entitled to have a
jury determine the amount of restitution that he should be
required to pay. The juvenile court denied youth’s motion
and entered a judgment ordering youth to pay $114,071.13
in restitution.
Youth appealed to the Court of Appeals, again argu-
ing that he was entitled to a jury trial on the issue of the
amount of restitution that he should be required to pay.
Youth acknowledged that restitution traditionally has been
understood to be a criminal sanction, but he contended that
the enactment of Article I, section 42, of the Oregon Consti-
tution, along with recent amendments to the criminal and
juvenile restitution statutes, had transformed that sanction
into a civil recovery device whose primary purpose is com-
pensation for victims. A claim for restitution, youth argued,
is best understood as a claim for monetary damages—a
claim that is indisputably civil and that therefore requires
compliance with Article I, section 17.
Cite as 354 Or 222 (2013) 225
The Court of Appeals rejected youth’s argument,
holding that a juvenile offender’s obligation to pay restitu-
tion is “penal, not civil, in nature.” N. R. L., 249 Or App at
332. The court first explained that, because the juvenile delin-
quency code did not exist at the time that Article I, section 17,
was adopted, and because that code is neither criminal nor
civil in the traditional sense, juveniles in delinquency pro-
ceedings generally are not entitled to a jury trial. Id. at 324.
The court then considered and rejected youth’s argument
that, notwithstanding that history, the particular action of
imposing restitution entitles youth to a jury trial. Restitution,
the court explained, continues to serve deterrent and rehabil-
itative purposes and is not a form of civil recovery for the
victim:
“Because we conclude that the amendments to the statute
did not affect the predominately penal characteristics of
the restitution award—and instead arguably reempha-
sized the role of restitution in ‘correcting * * * behavior’ and
impressing upon the offender ‘the seriousness and cost of
his offense,’ as recognized in Hart *  * we conclude that
*
[the] juvenile court’s order of restitution in a juvenile pro-
ceeding is penal, not civil, in nature.”
Id. at 332.
Youth petitioned for review, which we granted to
determine whether Article I, section 17, applies to a juvenile
restitution determination under ORS 419C.450. We review
the juvenile court’s denial of youth’s motion for a jury trial
for legal error. See State v. Rangel, 328 Or 294, 298, 977 P2d
379 (1999) (stating standard).
Article I, section 17, provides that, “[i]n all civil cases
the right of Trial by Jury shall remain inviolate.”1 This court
has emphasized that “the constitutional right of trial by jury
is not to be narrowly construed.” State v. 1920 Studebaker
Touring Car et al., 120 Or 254, 263, 251 P. 701 (1927). Rather,
Article I, section 17, guarantees a right to jury trial for all
1
Article VII (Amended), section 3, provides, in part, that, “[i]n actions at law,
where the value in controversy shall exceed $750, the right of trial by jury shall be
preserved * * *.” Youth does not assert a right to jury trial under that section, and
we therefore do not discuss it. For the same reason, we also do not discuss whether
youth has a right to jury trial under Article I, section 11, which guarantees right to
trial by jury in all criminal prosecutions.
226 State v. N. R. L.
civil claims or requests for relief, absent a showing that the
nature of the particular claim or request at issue is such
that it would have been tried to a court without a jury at
common law. M.K.F. v. Miramontes, 352 Or 401, 425, 287 P3d
1045 (2012). The fact that a particular claim or request was
not judicially recognized at the time that the constitution
was adopted or that such a claim or request was created
by the legislature thereafter does not necessarily mean that
the Article I, section 17, does not apply; it is the nature of
the claim or request that is determinative. See Miramontes,
352 Or at 413 (stating principle); see also 1920 Studebaker,
120 Or at 271 (Article I, section 17, applies to claim under
Prohibition-era forfeiture statute, even though statute did not
exist when constitution was enacted). The question before us,
therefore, is whether a restitution determination in a juve-
nile delinquency proceeding pursuant to ORS 419C.450 is
civil in nature.
This court previously has addressed a comparable
question. In State v. Hart, 299 Or 128, 699 P2d 1113 (1985),
this court held that a restitution determination in an adult
criminal prosecution pursuant to ORS 137.106 (1985),
amended by Or Laws 2003, ch 670, § 1, was not civil in
nature and that Article I, section 17, did not grant a right to
a jury trial in such a proceeding.2 The court acknowledged
that ORS 137.106 (1985) embodied a “peculiar blend of both
civil and criminal law concepts,” but determined that resti-
tution under that statute was “not intended to be equivalent
or alternative to a civil award.” Id. at 138. The court reasoned
that the theory behind restitution ultimately is “penological:
It is intended to serve rehabilitative and deterrent purposes
by causing a defendant to appreciate the relationship between
his criminal activity and the damage suffered by the victim.”
2
In Hart, the defendant also asserted a right to jury trial under Article I,
section 11, which grants a jury trial right in “all criminal prosecutions.” This court
agreed that the defendant constitutionally was entitled to have a jury decide all
the elements of the crime for which he was convicted, but determined that that
principle did not necessitate a jury trial in the defendant’s restitution hearing.
The court explained that, although the seriousness of the injury inflicted by the
defendant was an element of the crime with which the defendant was charged, the
monetary amount of the medical and other expenses associated with that injury
was not. Thus, although the amount of the restitution order “might be termed an
element of sentencing, it is not an element of the crime of assault,” and the defen-
dant was not entitled to a jury trial under Article I, section 11. 299 Or at 137.
Cite as 354 Or 222 (2013) 227
Id. (internal quotation marks omitted). Restitution is not, the
court explained, intended to serve a primarily compensatory
function or to compensate victims fully for their losses. The
amount of restitution to which a victim might be entitled “does
not automatically translate into what the court may require
the defendant to pay”; instead, the court must “mitigate[  ]”
the amount of restitution imposed, based on the financial
resources of the defendant, his or her ability to meet the
installment payments, and the rehabilitative effect that resti-
tution may have. Id. at 135-36. Restitution must be under-
stood, the court concluded, as “an aspect of criminal law, not
as a quasi-civil recovery device.” Id. at 139 (quoting State v.
Dillon, 292 Or 172, 180, 637 P2d 602 (1981)).
Youth argues that ORS 419C.450, the juvenile resti-
tution statute, differs from ORS 137.106 (1985), the statute
at issue in Hart, in that a restitution determination under
the juvenile code is not an “aspect of criminal law” but is
instead a civil recovery device. There are two aspects of the
juvenile restitution statute that may distinguish it from the
adult restitution statute that this court analyzed in Hart.
First, a restitution hearing under ORS 419C.450 occurs in
the context of a juvenile delinquency, rather than an adult
criminal, proceeding. Second, as presently configured, ORS
419C.450 may be different in purpose and function from the
adult restitution statute that the court analyzed in Hart.3
We take each of those considerations in turn and
begin with the fact that juvenile delinquency proceedings are
in many ways different from adult criminal proceedings.
In State v. Reynolds, 317 Or 560, 857 P2d 842 (1993), this
court described the differences in the two regimes as they
existed in 1993 and determined that the jurisdictional phase
of a juvenile proceeding under ORS 419.476(1)(a) is not a
“criminal prosecution” within the meaning of Article I,
section 11, of the Oregon Constitution. Id. at 563. Therefore,
3
ORS 419C.400(1) provides, in part, that juvenile delinquency hearings “shall
be held by the court without a jury.” The state suggests that youth is challenging
that statute’s constitutionality and urges us to apply the principle of statutory
construction that “[e]very statute is presumed to be constitutional, and all doubt
must be resolved in favor of its validity.” Jehovah’s Witnesses v. Mullen et al, 214
Or 281, 293, 330 P2d 5 (1958). Although that is true, a statute in conflict with the
constitution cannot stand. See 1920 Studebaker, 120 Or at 263 (constitution grants
right to jury trial even though statute permits trial to court).
228 State v. N. R. L.
the court held, the right to a jury trial in a “criminal prose-
cution” as set out in that statute does not attach to such a
juvenile proceeding. Id. at 575. That does not mean, however,
that juvenile delinquency proceedings do not have criminal
aspects that may make the imposition of restitution criminal
rather than civil in nature for purposes of Article I, section
17.4
ORS 419C.450—the juvenile restitution statute—
applies when a juvenile commits “an act that is a violation,
or that if done by an adult would constitute a violation, of
a law or ordinance of the United States or a state, county
or city.” ORS 419C.005(1). See State v. McCullough, 347 Or
350, 359, 220 P3d 1182 (“[j]uveniles can engage in conduct
constituting a crime, even though they may not be held crimi-
nally responsible in certain cases”). On a finding that the
victim of a crime has suffered injury, loss, or damage, the
trial court is required to impose restitution “in addition to
any other sanction it may impose.” ORS 419C.450(1)(A).
Thus, the imposition of restitution in a juvenile delinquency
proceeding constitutes a sanction for conduct that is criminal
in nature. Accordingly, restitution in a juvenile proceeding
may be understood, as the court understood the restitution
imposed in Hart, as an “ ‘aspect of criminal law.’ ” 299 Or at
139 (quoting Dillon, 292 Or at 180).
Youth argues, however, that restitution that is imposed
in a juvenile proceeding is better understood as a means of
compensating or restoring the person that a juvenile has
injured. In other words, youth contends that restitution under
ORS 419C.450 is a civil recovery device that, under current
4
Although the civil versus criminal distinction is a central organizational fea-
ture of our legal system, that distinction has changed over time. Many “hybrid”
legal structures currently exist, in addition to restitution, that borrow from both
traditions—for example, punitive damages in civil cases, statutory civil penalties,
civil forfeiture, and civil fines for violations of federal and state regulations. See,
e.g., Carol S. Steiker, Punishment and Procedure: Punishment Theory and the
Criminal-Civil Procedural Divide, 85 Geo LJ 775, 777, 782 (1997) (civil-criminal
distinction “deeply embedded” in Anglo-American law, but has never been static,
and today is blurred by the increasing number of “hybrid” legal institutions and
practices); Aaron Xavier Fellmeth, Civil and Criminal Sanctions in the Constitution
and Courts, 94 Geo LJ 1, 2, 4 (2005) (few distinctions are more fundamental and
consequential, but today the distinction is blurred). As this case illustrates, “hybrid”
legal structures leave courts with the difficult challenge of determining the appli-
cation of constitutional rights that attach only to civil cases or, more commonly, to
criminal ones.
Cite as 354 Or 222 (2013) 229
law, is different in purpose and function from the adult resti-
tution statute that this court analyzed in Hart.
Youth explains that, prior to amendment in 2003,
ORS 419C.450 (2001) provided judges with the option of
imposing restitution as a sanction where a youth offender
had “caused another person any physical, emotional or psy-
chological injury or any loss of or damage to property.” ORS
419C.450(1)(a) (2001), amended by Or Laws 2003, ch 670, § 4.
The legislature explicitly encouraged the use of restitution in
those instances and created a rebuttable presumption that
“the obligation to make such restitution is in the best inter-
est of the youth offender as well as of the victim and society.”
Id. However, the imposition of restitution was not mandatory,
and, in determining whether restitution was an appropriate
sanction, the court was required to consider whether it would
contribute to the rehabilitation of the youth offender. ORS
419C.450(4) (2001) (court “shall take into account” the finan-
cial resources of the youth offender, the ability of the offender
to pay on an installment basis, and the rehabilitative effect
on the youth offender).
In 2003, following the adoption of Article I, section
42, of the Oregon Constitution,5 the legislature passed Senate
Bill 617 and amended ORS 419C.450. See Or Laws 2003,
ch 670, §§ 1 and 4. SB 617 made restitution in juvenile delin-
quency proceedings mandatory rather than discretionary.
ORS 419C.450 now provides that the district attorney “shall
investigate and present to the court” any evidence concerning
the nature and amount of the injury or damage and that, if
the court finds from the evidence presented that a victim
suffered injury, loss, or damage, the court “shall” include a
restitution requirement in the judgment. In that judgment,
the court must either specify the “specific amount that equals
the full amount of the victim’s injury, loss or damage” or pro-
vide that a specific amount will be established by a supple-
mental judgment within 90 days. ORS 419C.450(1)(a)(A), (B).
The only flexibility that the juvenile court retains
is in determining how a mandatory restitution judgment is
to be carried out. Under ORS 419C.450(3)(a), a court may
5
Article I, section 42, grants certain rights to crime victims in both adult and
juvenile delinquency proceedings.
230 State v. N. R. L.
delay the enforcement of a restitution judgment only if it
finds that the youth offender is unable to pay. If the court so
finds, then the court or a designated “supervising authority”
may establish a payment schedule, taking into consideration
various criteria that include “the rehabilitative effect on the
youth offender of the payment of restitution and the method
of payment.” ORS 419C.450(3)(a).6
Similarly, the juvenile court is authorized to grant
a motion for satisfaction of judgment under limited circum-
stances. A person who owes restitution may file a motion
for satisfaction of the judgment if, among other criteria, at
least 50 percent of the monetary obligation is satisfied or
at least 10 years have passed since the original judgment
was entered. ORS 419C.450(5). When a person files such
a motion, the district attorney must notify the victim, who
may file an objection. ORS 419C.450(6). If the victim does
not object, the court “shall hold a hearing” and may enter an
order granting a full or partial satisfaction of the judgment
“if the allegations in the affidavit *  * are true and failure
*
to grant the motion would result in an injustice.”7 ORS
419C.450(7). In determining whether an injustice would
result, the court must again consider a number of criteria,
which include the rehabilitative effect on the defendant. Id.8
6
ORS 419C.450(3)(a) provides that the court may establish a payment sched-
ule, taking into consideration the following criteria:
“(A)  The availability to the youth offender of paid employment during such
time as the youth offender may be committed to a youth correction facility;
“(B) The financial resources of the youth offender and the burden that
payment of restitution will impose, with due regard to the other obligations of
the youth offender;
“(C)  The present and future ability of the youth offender to pay restitution
on an installment basis or on other conditions to be fixed by the court; and
“(D)  The rehabilitative effect on the youth offender of the payment of resti-
tution and the method of payment.”
7
ORS 419C.450 does not explicitly state what happens in the event that the
victim does object to the motion.
8
ORS 419C.450(7) requires a judge to consider:
“(a)  financial resources of the defendant and the burden that continued
The
payment of restitution will impose, with due regard to the other obligations of
the defendant;
“(b)  ability of the defendant to continue paying restitution on an install-
The
ment basis or under other conditions to be fixed by the court; and
“(c)  The rehabilitative effect on the defendant of the continued payment of
restitution and the method of payment.”
Cite as 354 Or 222 (2013) 231
Youth argues that the changes described above
rendered ORS 419C.450 civil in nature because, now, the
primary purpose of ORS 419C.450 is to compensate the
victim, rather than to rehabilitate the juvenile or achieve
other “traditional penal ends.” Youth focuses in particular
on the shift from a discretionary to a mandatory restitution
regime as evidence of that change in purpose. Youth also
suggests that restitution under ORS 419C.450 is civil in
nature because it has become a “right” that a victim may
“personally enforce *  * even if the state does not do so
*
because of a conflict between the victim’s interest and the
public’s interest.” Youth cites ORS 147.500 to 147.550 as pro-
viding the procedural mechanism by which a victim may
assert such a claim.
Youth is correct that restitution under ORS 419C.450
serves a compensatory purpose. Although a judgment for
restitution is in favor of the state and may be enforced only
by the state, the funds paid pursuant to the judgment must
be disbursed to the victim. ORS 419C.450(4) (“Judgments
entered under this subsection are subject to ORS 18.048”);
ORS 18.048(2)(b) (“If restitution * * * is awarded, [judgment
must include] the name and address of the person to whom the
court should disburse payments, unless the victim requests
that this information be exempt from disclosure in the public
record.”). The legislature also requires that such payments
be credited toward any sum that a victim obtains if the vic-
tim brings a civil action for damages. ORS 419C.450(2).
Youth is incorrect, however, in suggesting that,
because a crime victim has an enforceable right to restitution,
a restitution determination is analogous to a private right of
action for damages. Article I, section 42, grants crime vic-
tims the right to “receive prompt restitution,” and the pro-
visions of ORS 147.500 to 147.550 effectuate that right.
ORS 147.504(1). However, those statutory provisions do not
permit a victim to assert a claim for restitution against a
juvenile offender.
First, in a proceeding under ORS 419C.450 in which
restitution may be imposed, crime victims are not parties.
The district attorney, on behalf of the state, investigates and
presents evidence concerning the nature and amount of the
232 State v. N. R. L.
victim’s injury or damage. ORS 419C.450(1)(a). When resti-
tution is imposed, “[t]he judgment is in favor of the state and
may be enforced only by the state * * *.”9 ORS 419C.450(4).
Second, although a victim who is denied a consti-
tutional right to “receive prompt restitution” may make a
“claim,” ORS 147.515, that claim is not a claim for damages.10
If a victim makes a claim that the victim has been denied a
constitutional right to “receive prompt restitution,” then the
trial court determines whether that claim is facially valid.
If the trial court deems the claim to be facially valid, it must
issue an order to “show cause why the victim should not be
granted relief,” ORS 147.517(2), and hold a hearing on the
victim’s claim, ORS 147.530. At the conclusion of that hearing,
the trial court must make factual findings and issue an order
granting or denying the relief requested. ORS 147.530(2),
(4), and (5). Thus, a victim’s claim that he or she was denied
the right to “receive prompt restitution” is a claim that the
trial court did not properly discharge its constitutional obli-
gations; it is not a claim to recover damages from the youth
offender and, therefore, is not analogous to a private right of
action.11 See State v. Algeo, 354 Or 236, ___ P3d ___ (2013)
(considering a claim that trial court did not properly
discharge its constitutional obligation). A victim who seeks
damages from a youth offender has an independent right to
bring a civil action for damages against the youth offender.
Any restitution that a youth offender pays must be credited
against a judgment in the victim’s favor in such an action.
ORS 419C.450(2).
Youth also is incorrect that, because courts are now
mandated to impose restitution, whether or not it will serve
deterrent and rehabilitative purposes, the “primary purpose”
of restitution under ORS 419C.450 is to compensate victims.
9
ORS 419C.450(4) also provides that a restitution judgment is subject to
ORS 18.048, which defines the procedures for entry and enforcement of judgments
in criminal actions that contain money awards. That statute provides that “[a]
judgment in a criminal action that contains a money award is a judgment in favor
of the state and may be enforced only by the state.” ORS 18.048(5).
10
A crime victim also may allege a violation of a constitutional right under
Article I, section 42, “by a mandamus proceeding if no case is pending * * *.” Or Const,
Art I (Amended), § 42(3)(b); ORS 147.504(1).
11
We do not decide in this case whether a victim would have a right to a jury
trial in making such a claim or whether an offender affected by such a claim would
have a right to a jury trial. Here, the victims did not file a claim asserting that
their constitutional rights were violated.
Cite as 354 Or 222 (2013) 233
In Hart, this court described restitution as a flexible sen-
tencing tool, utilized when its imposition would further the
penological purposes of rehabilitation and deterrence. See
299 Or at 138 (“[R]estitution is to be ordered only as it is
relevant in correcting defendant’s behavior and as a step to
accomplishing the traditional goals of sentencing such as
rehabilitation of the defendant and deterrence to impress
upon the defendant the seriousness and cost of his offense.”).
It is true that ORS 419C.450 no longer retains either that
flexibility or that explicit emphasis on rehabilitation. Reha-
bilitation now appears only as a criterion that may inform
a judge’s decision to delay enforcement of a restitution sanc-
tion where a youth is unable to pay12 and as a factor that
the judge must consider in a hearing for satisfaction of judg-
ment.13 However, we disagree with the conclusion that youth
draws from that change in emphasis for several reasons.14
As an initial matter, restitution remains a sanction
imposed by the juvenile court as a result of a youth’s violation
of the law. The fact that imposition of that sanction is now
mandatory rather than discretionary serves to highlight its
penal nature. We find it significant that, in granting crime
victims the “right to receive prompt restitution,” Article I,
section 42, does not distinguish between juvenile delinquency
and adult criminal proceedings or between juvenile and adult
offenders. It defines the term “convicted criminal” to include
“a youth offender in juvenile court delinquency proceedings,”
and it defines “criminal defendant” to include “an alleged
youth offender in juvenile court delinquency proceedings.”15
12
ORS 419C.450(3)(a)(D) provides that “[t]he rehabilitative effect on the youth
offender of the payment of restitution and the method of payment” is one of the
criteria that may inform a judge’s decision to delay the enforcement of restitution
where the youth is unable to pay.
13
ORS 419C.450(7) provides that the court may enter an order granting a full
or partial satisfaction “if the allegations in the affidavit supporting the motion are
true and failure to grant the motion would result in an injustice” based on three
criteria, including rehabilitative effect.
14
In this case, youth does not contend that restitution has become a “criminal pros-
ecution” for purposes of Article I, section 11, and we do not consider that question.
15
Article I, section 42(6), provides, in part:
“(a)  ‘Convicted criminal’ includes a youth offender in juvenile court delin-
quency proceedings.
“(b) ‘Criminal defendant’ includes an alleged youth offender in juvenile
court delinquency proceedings.”
234 State v. N. R. L.
We also note that contemporary restitution statutes
always have served a combination of civil and criminal law
purposes. See Hart, 299 Or at 136, 138 (restitution statute
presents “a peculiar blend of both civil and criminal law
concepts,” and courts, in applying that statute, must “balance
the offender’s economic circumstances, the victim’s interest
in the recovery and the punitive and reformative goals * * *”).
That combined purpose historically has been true as well:
Before the conceptual separation of civil and criminal law, it
was “standard practice to require an offender to reimburse
the victim or his family for any loss caused by the offense,”
and “[t]he primary purpose of such restitution was not to
compensate the victim, but to protect the offender from vio-
lent retaliation by the victim or the community.” Hart,
299 Or at 132. As the division between civil and criminal
law developed, the victim’s right to compensation became
incorporated into civil law; however, restitution continued
to be available on a limited basis in the Anglo-American
system as a penalty that served a penal purpose. Id.
Finally, the legislative history that the parties cite
reveals a legislative view that “compensation for the victim”
is a tool to achieve penal and rehabilitative ends.16 When
the legislature amended the juvenile restitution statutes, it
determined that a mandatory rather than a discretionary
restitution regime would better serve the penal ends that it
wished to achieve.
We conclude that a restitution determination pursu-
ant to ORS 419C.450 is not civil in nature. We therefore hold
that Article I, section 17, did not grant a right to jury trial in
this case.
16
Senate Bill (SB) 617 (2003), which was the genesis for the 2003 amendments
to ORS 419C.450, was referred to the House Committee on the Judiciary. In intro-
ducing the bill at the public hearing, Attorney General Hardy Myers stated that
“[t]his bill in effect seeks to fulfill the constitutional commitment that Oregon
has made to crime victims” under Article I, section 42. Tape Recording, House
Committee on Judiciary, SB 617, May 20, 2003, Tape 199, Side A (statement of
Attorney General Hardy Myers). Myers further explained that offenders “should
be under strict legal obligation to make a full restitution to victims” and that the
task force believed that “such payment is also an important mechanism for offender
rehabilitation and reintegration as a productive and law abiding member of our
society.” See also id. (according to the Oregon Crime Victims’ Needs Assessment,
“offender accountability is the area within the criminal justice system most need-
ing improvement”).
Cite as 354 Or 222 (2013) 235
The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.