The Volokh Conspiracy
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The Arizona Supreme Court Requires Future Lost Income Restitution for a Child Murder Victim
When a murderer kills a victim, including a child, the murderer has directly and immediately eliminated the victim's ability to earn income. The only remaining issue is to reasonably estimate the size of that loss.
Today the Arizona Supreme Court handed down an important ruling on restitution in homicide cases. Interpreting Arizona's restitution statutes, the Court concluded that they require restitution for future lost income in homicide cases. The victim's family can establish the amount of restitution that is owed through reasonable estimation.
In Arizona, a victim has a right to receive full restitution from persons "convicted of the criminal conduct that caused the victim's loss or injury." See Ariz. Const. art. 2, § 2.1(A)(8). In a homicide case, the appropriate family representative for the victim steps into the victim's shoes for restitution purposes. The goal of restitution in Arizona (as in most other jurisdictions) is to restore victims to the position they were in before the loss or injury caused by the crime.
In earlier cases, Arizona courts held that "restitution should be ordered for losses that (1) are economic; (2) would not have been incurred by the victim but for the criminal offense; and (3) were directly caused by the criminal conduct." And these earlier cases held that future economic losses were recoverable.
In today's decision, the Arizona Supreme Court rejected a murderer's argument that a child's future lost income was not directly caused by the homicide. The Court explained that "where the criminal conduct directly caused the victim's future … lost wages, [the victim's] murder directly caused [the] claimed loss. [The victim's] future ability to earn wages was directly and immediately eliminated with his death, and no other causal events occurred or remained to occur to produce that result. In other words, the loss was direct and immediate."
The Arizona Court of Appeals had reached a different conclusion. But today the Arizona Supreme Court reversed, holding that the court of appeals "mistakenly conflated the cause of [the victim's] future lost wages with the calculation of that loss." The court of appeals had concluded that future lost wages were consequential damages because "so many undetermined causal factors contributed to the six-year-old [victim's] projected earnings that the trial court had no basis to validly calculate an amount." But the Arizona Supreme Court held that these are separate inquiries: "If criminal conduct directly caused a victim's loss, … any uncertainty in calculating that loss does not negate the causation finding. Rather, once the right to restitution is established, the inquiry turns to whether the victim has sufficiently demonstrated the amount of the loss so that restitution can be ordered."
Turning to the issue of the amount of loss, the Arizona Supreme Court instructed that the victim "must provide a reasonable basis for estimating the incurred loss." The Court cited the Restatement (Second) of Torts § 912 cmt. a. (Am. L. Inst. 1979), which explains that injured persons should provide a "definiteness of proof as to the amount of damage as far as is reasonably possible" and noting that "an injured person [should] not be deprived of substantial compensation merely because he cannot prove with complete certainty the extent of harm." The Arizona Supreme Court remanded so that the victim's family could present the evidence on expected future lost earnings caused by the murder.
Today's Arizona Supreme Court decisions parallels a ruling that I made as a federal district court judge. In U.S. v. Serawop (as ultimately affirmed on remand), I awarded $325,751 in restitution to a mother whose three-month-old baby was criminally killed. I relied on lost income calculations by an expert accountant. Presumably in this Arizona case, the victim's family can provide similar, reasonable calculations. In my decision, I reasoned that where a killer has deprived the victim of a chance to succeed in life, a judge's discretion should be exercised in favor of the victim.
Note: The victim in this case was represented by Colleen Clase of Arizona Voice for Crime Victims. I provided advice to AVCV as they were pursuing this claim.
