A recent article in The Oregonian outlined what has become a depressingly common story: the abrupt disappearance of Saudi Arabian students facing criminal charges here in Oregon. The newspaper reports that it “has found criminal cases involving at least five Saudi nationals who vanished before they faced trial or completed their jail sentence in Oregon.”
The suspects “include two accused rapists, a pair of hit-and-run drivers and one man with child porn on his computer.” A 2014 case detailed by the newspaper fits the pattern: shortly after the man’s arrest a Saudi diplomat appeared at the local district attorney’s office to post bail for the accused student. Having made bail and been released the defendant later failed to appear for his trial. As the newspaper puts it, the “cases raise new questions about the role the Saudi government may have played in assisting its citizens fleeing prosecution in Oregon – or possibly elsewhere in the United States.”
Any conduct along those lines would be a serious violation of diplomatic norms. Questions like that lie outside the scope of this blog, but there are other issues raised by these cases that are of immediate concern to us here.
The first concerns the distinction between criminal and civil cases. Offenses like the ones mentioned above are criminal – one can (and, if guilty, should) go to jail for them. Civil cases allow victims to obtain compensation for wrongs done to them separate from any that society, in the form of the government, may require from someone convicted of breaking the law. In ordinary circumstances if someone is convicted in criminal court a judge can release the bail money to a victim as part of the criminal sentence. The victim can also hire a civil attorney to help her seek restitution. Negotiations between a defendant’s criminal attorney and a victim’s civil attorney are quite common, for example, in cases involving car accidents and payment via insurance companies.
But what happens if the defendant skips bail? In that circumstance the bail money is forfeited, but that fact can be of little consolation to the victims. If there had been a trial and conviction a court could direct that some or all of the bail money be paid to the victims, but the absence of any legal finality can leave the victims in limbo. Victims can file a civil suit seeking a default judgement (essentially a ruling by the court that since the accused never showed up to defend himself the court is deciding the case for the plaintiff), but there is often no practical way to collect compensation in such a situation – especially if there is evidence that the accused has fled to Saudi Arabia and has no intention of returning to the United States.
Can a victim, in these circumstances, claim the forfeited bail money as part of their compensation? Common sense and logic would say yes, but the law, sadly, is not that clear. As the chart linked below outlines there are more than a dozen states that allow this, but Oregon is not one of them. A case can be made, however, that ORS 161.685 effectively does make such a decision possible should a court choose to take that approach. The key portion is Paragraph 6, which states, in part: “a default in the payment of a fine or costs or failure to make restitution or a default on an installment on a fine, costs or restitution may be collected by any means authorized by law for the enforcement of the judgement.”
As a Portland attorney whose practice has long focused on helping victims obtain the justice they are due through our courts, I believe there is a strong case forfeited bail meets the legal definition of a defaulted payment and that the state, having taken ownership of the funds is within the law in distributing them to a crime victim as full or partial payment of a default judgement. It would, of course be better if Oregon’s legislature were to follow the lead of other states and explicitly authorize such payments, but barring that this is a legal avenue which the victims of the accused Saudi students – and anyone in a similar situation- ought to explore carefully.
VictimsofCrime.org: Use of Bail/Bond Funds for Restitution