By his own admission, Richard Aguirre has “got in some hot water” in the past. He is not proud of it, but in 2009 took a plea deal involving a non-violent financial crime to bring a quick resolution to the case. The Superior Court ordered him to make the victim whole and since then he has paid over $20,000 in restitution.
Aguirre had been keeping up with his monthly payments until the bill spiked, without warning, in August 2022. He sought answers from the San Diego County Office of Revenue and Recovery and discovered the source — California Assembly Bill 177, signed into law the year before.
The legislation was designed to decrease the burden of court fees on people trying to make good on their debt to society, but the county was doing the opposite. He was now expected to pay an extra $408 every month to cover the interest on the total he was paying back. If Aguirre didn’t, his underlying balance would grow out of control.
“I would have had to pay that every month just to keep it at zero,” he said.
His initial sense of hopelessness faded after his public defender petitioned the court to intervene. In December, Judge Laura Halgren agreed that the new amount Aguirre owed was beyond his means. She ordered his interest payments be waived and framed it against the U.S. Constitution’s prohibition against cruel and unusual punishment.
“I think that the interest, adding that onto what he’s already paying … would be excessive under the Eighth Amendment,” she said.
Though Aguirre was pleased with the outcome, the money he’d already spent to keep up with the new interest fee was never deducted from the overall balance. He decided to just move on. “They won,” he said in an interview. “They got me on that.”
But because Halgren’s decision could only be applied narrowly in Aguirre’s case, thousands of others in San Diego are still on the hook.
AB 177 eliminated the ability of counties and superior courts to charge defendants with 17 different administrative fees and ordered any portion of a judgment imposing those fees to be vacated, as the First District Appellate Project noted in 2021. The elimination of these fees means counties are now losing a source of revenue, and in some cases reassessing where else they can raise money.
Anticipating this reality, AB 177 gave counties the ability to find other means of backfilling their general fund budgets in the amount of $25 million in fiscal year 2021-22 and $50 million in fiscal year 2022-23.
Michael Workman, the county’s director of communications, said the new interest fee goes directly to victims, not the county itself, and impacts approximately 7,400 individuals. AB 177, he said in an email, repealed a section of the penal code that allowed a court to impose interest on restitution as a condition of probation. But he also noted, the legislation left unchanged and re-enacted another part of the penal code that allows the court to award 10 percent interest annually on victim restitution regardless of probation status.
“Therefore,” he said, the latter of these penal codes “requires our office to continue to charge court ordered interest.”
Stephanie Campos-Bui, an assistant professor of law at UC Berkeley’s Policy Advocacy Clinic, reviewed San Diego County’s interest policy, and she agreed AB 177 does not prevent the county from charging this interest. But she said the legislation is raising questions for cases like Aguirre’s.
“We are seeing some questions about whether interest should be charged on restitution across the state for different reasons,” she said.
She noted, however, that San Diego County is arguing on its website that AB 177 “only affects the method of calculation; it does not eliminate the court’s ability to order interest for restitution owed.”
“I have not seen any other county argue that,” Campos-Bui said. “And I’m in a position where I’m tracking implementation of this bill across the state. They’re the only county who seems to have argued that it’s a calculation issue.”
In general, Campos-Bui said, San Diego County has taken an aggressive approach to restitution, with the second highest dollar amount in the state, and added that “they also seem to send more accounts to the Franchise Tax Board for wage garnishment, refund intercept, etc., than most counties.”
Workman said interest rates prior to AB 177 were calculated based on the past monthly amount a defendant owed. After the legislation, he said, if there was no monthly payment plan in place, the county calculated the interest owed on the total underlying balance.
Given the huge and growing rent burden many San Diegans are facing, this additional amount could make a serious impact on the ability of thousands to keep up with their cost of living.
Hundreds of dollars in fees every month could mean that “someone has to make a choice between paying the revenue recovery or keeping a roof or food on the table,” Aguirre said. “They’re going to put that to the side. And that’s going to lead to, I don’t know, maybe a warrant for their arrest.”
As of now, Aguirre seems to be the only person who has challenged the interest payments.
You might counter-frame this issue: individuals have been adjudicated to have victimized certain people. As part of that process, the victimizer has been required to pay those people back (restitution means just that – not a penalty, but a restoration of what the victim lost). Rather than immediately pay back the victim for the entire amount of the harm they caused the victim, the victimizer is allowed to pay the money over time — thereby creating a loan from the victim to the victimizer. The amount of those payments is (supposed to be) calibrated to the ability of the victimizer to pay. In Mr. Aguirre’s case, apparently the amount needed to be recalibrated. But that is unlikely to be true in all cases, and it would be unfair to the victims receiving the restitution to simply disallow all interest in all cases — the deferred payments are functionally a loan, after all. And, as Mr. Aguirre points out, the failure to have that money in hand could have a “serious impact on the ability of thousands to keep up with their cost of living….” Perhaps the person making those hard choices is the victim, not the victimizer and — had they not been the victim of the crime — they would have the money and not have to make that choice. Just noting this is a nuanced issue, and there is another very valid and less-sympathetic-to-the-victimizer take on this that you might have explored.