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Criminal Restitution and the Bankruptcy Discharge: Should We Reopen Debtors' Prison?

NCJ Number
Criminal Justice Journal Volume: 10 Issue: 1 Dated: (Fall 1987) Pages: 27-39
J McCafferty; G M Bubis
Date Published
13 pages
This critical review of the U.S. Supreme Court decision in Kelly v. Robinson argues that the holding will foster abuse of the criminal justice system by encouraging the use of criminal prosecutions to impose and collect debts that are otherwise dischargeable in bankruptcy.
Robinson had pleaded guilty in 1980 to a criminal charge of larceny based on her wrongful receipt of Connecticut welfare benefits. As a condition of probation in lieu of prison she was required to make monthly restitution payments to the State probation agency for the benefit of the 'victim,' the Connecticut welfare agency. In 1981, she successfully filed for relief under the bankruptcy code, listing the restitution obligation as a debt. The Supreme Court decision in this case took any debt imposed in any criminal proceeding out of the reach of bankruptcy discharge. The decision is a clear invitation for creditors, aided by politically responsive prosecutors, to try to circumvent the discharge provisions of the Bankruptcy Code through subversion of State criminal justice system to obtain 'restitution orders' to collect civil debts. The decision has therefore weakened two coexisting systems that already have a complex relationship: the Federal debt relief system and State criminal justice administration. 71 footnotes.