State attorneys have argued that a clause written into the 1953 PERS law protects retiree accounts from garnishment or transfer to other parties — whether for unpaid credit card bills, lawsuits they’ve lost, or in this case, restitution owed by a convicted child molester. The Oregon Constitution guarantees a victim’s right to “prompt” payment of restitution from the people who hurt them — and the girl’s attorney argues that right trumps PERS law.
Josh Lamborn, a Portland attorney representing the mother of the girl, is puzzled by the state’s stance. On its website, the Justice Department lists “protecting crime victims” and “improving the well-being of Oregon’s children” under the first two bullet points of its seven-point mission statement. “It boggles the mind — defending this person because he was a public employee,” Lamborn said. “It seems totally contrary to their mission.”
That criticism doesn’t appear lost on state attorneys assigned to the case. “The facts of the case are egregious,” wrote John Dunbar, the Justice Department attorney in charge. But PERS law “unfortunately” protects the state from channeling Garcia’s benefits to his victim, Dunbar said. The position may seem “heartless and cold,” said department spokesman Jeff Manning, but the state also believed that not siding with Garcia could jeopardize the tax-exempt status of the entire PERS program. Attorney General Ellen Rosenblum declined to comment.
A Multnomah County Circuit Court judge agreed with the state earlier this year. The girl and her mother appealed to the Oregon Supreme Court in what appears to be the first case of its kind challenging the PERS protection. But last month, they got their answer: The high court won’t consider the case and gave no reason why.
“It’s very frustrating,” said Erin Olson, the Portland attorney representing the girl. “The Supreme Court has effectively cut off any hope (the family has) in paying for this little girl’s counseling.” Olson said one last avenue remains: The Legislature could change state law to force PERS retirees to make good on restitution.
It’s not clear how many retirees that would affect. Public retirees have fought for privacy, and lawmakers have agreed PERS shall not release retirees’ birth dates or other identifying information, including whether their home address is a prison. That makes cross-referencing PERS rolls (covering about 118,000 retirees) with a roster of state inmates (currently about 14,000) a nearly impossible task.
The Oregonian was able to track down some people who fit the profile. Most of them, like Garcia, are child molesters. Most owe relatively modest amounts but have dodged court orders. Also as with Garcia, the state hasn’t acted to dip into their public retirement checks. Beyond the PERS dispute, Garcia’s case has sparked broader questions about what inmates owe victims and society at large — and what Oregon does to collect from prisoners.
Failure to pay
Overall, offenders in Oregon have a dismal track record of paying restitution. In the past 50 years, convicted criminals in Oregon have failed to pay $424 million in restitution and compensatory fines to 82,000 victims, according to state calculations.
Last year, judges in 30 of Oregon’s 36 counties ordered defendants to pay more than $21 million to their victims for a wide array of damages, including broken car windows, stolen goods that were never returned, counseling or funeral expenses to the families of people who were killed. But they paid only about $2 million, or 9 percent, of the money owed.
Some don’t pay because they’re bitter — contending that they were wrongly convicted. Some don’t pay simply because they’d rather have the money for themselves, or they’re buying drugs to fuel their addictions. Others don’t have the ability to pay.
Meg Garvin, executive director of the National Crime Victim Law Institute at Lewis & Clark Law School, said Garcia’s case stands out because his finances are known: He receives $5,784 from PERS each year. And Garcia clearly doesn’t need the money to buy food or pay rent because his basic needs are taken care of in prison, Garvin said. “When you have offenders who have the resources to pay and we’re putting hurdles in the way of the victim recovering that money, that’s really troublesome,” she said. Much of the state’s problem with restitution, she said, is that there’s no single agency responsible for enforcing court orders. That job is predominantly left up to the individual district attorney’s offices across Oregon. But DAs say they have little staff to spare to devote to collections.
In January 2012, the state began funding a $1.8 million, 2 1/2-year pilot project for extra staff in five counties — Multnomah, Lane, Jackson, Jefferson and Crook — to get more offenders to pay up. The Multnomah County DA’s office has used the extra staff, and devoted some of its own, to look at offenders’ bank balances, investigate whether they have jobs, or own homes or cars that can be liquidated. In one case, prosecutors persuaded a judge to order a delinquent defendant to sell his car.
Other states’ strategies
Other states are more aggressive in forcing offenders to pay victims for their losses as well as cover some of the costs of their imprisonment. Some states strip the benefits of some public retirees who are inmates — following the lead of the federal government, which cuts off Social Security checks to all prisoners on the reasoning that tax-supported prison systems are already taking care of their basic needs.
The former city manager of Dallas, Ore., 15 miles west of Salem, drew public ire after siphoning money from the city for his own use. Jerry Allen Wyatt was convicted of official misconduct and theft, and sentenced in January to two years in prison. While he quickly repaid nearly $12,000 in restitution to the city, the 46-year-old, who earned more than $100,000 a year on the job, will get to collect his PERS benefits when he retires — stirring controversy in his community.
Many states — 24, according to a 2012 count by the publication Governing — ban public employees or elected officials from collecting their pensions if they’re convicted of crimes related to their official duties. Oklahoma goes further, forcing public employees to forfeit their pensions if they’re convicted of any felony, related to their work or not. Oregon isn’t among any of those states. But House Bill 2784, sponsored by Rep. Gene Whisnant, R-Sunriver, would allow the state to cut off part of public retirees’ benefits if they’re convicted of a work-related felony. The bill hasn’t been scheduled for a committee hearing and appears to be going nowhere this session.
In the past 15 years, appeals courts have ruled in Illinois, Kansas, Michigan, Washington and the federal prison system that it’s legal to take prisoners’ money — including from their pensions — for everything from crime victim compensation to incarceration costs. Inmates across the nation have challenged many of the deductions. But in two cases in 2000 and 2007, the 9th U.S. Circuit Court of Appeals, which hears federal appeals from nine Western states including Oregon, ruled that tapping money from prisoners’ assets — including pension money — was constitutional.
Girl still suffers
The mother of the girl Garcia molested said she and her daughter have acutely felt the effects of Garcia’s abuse — emotionally and financially. “We had to move,” she said. “I had to replace clothing. I had to replace all of her bedding. I had to get rid of all of these things. Because she didn’t want to wear that, touch that. I got rid of our couch. For a year and a half, we didn’t have a couch.” The girl’s mother also is paying for her daughter’s counseling. She could have turned to the state’s crime victim compensation fund for help, but wouldn’t have been able to pick the counselor she wanted.
The woman sat silently in the gallery of a Multnomah County courtroom in February as she listened to Garcia’s excuses about why he hadn’t paid. In his plea deal more than a year earlier, Garcia had agreed to channel all of his PERS checks to the girl in exchange for 20 years in prison instead of 25 years. But a few months later, he refused to file the necessary paperwork and Judge John Wittmayer sentenced him to the longer term. The girl’s mother doesn’t know if Garcia understands the harm he’s continuing to inflict. “I don’t think he’s able to see the difference between right and wrong,” she said. She also listened to a Justice Department attorney defend Garcia’s right not to pay. “What about the victims?” she asked. “Does that mean that we’re to chin up and grin up, to bear it and carry forward?” She’s doing everything in her power — and finances — to help her daughter, she said. “My daughter feels like she’ll never be OK, and it’s my job to make sure that’s not the case.”
— Aimee Green