¶ 65. (dissenting). The majority opinion aptly sets forth the law with regard to restitution owed to victims of a crime. I part ways with the majority when it, like the circuit court, fails to recognize that Wis. Stat. § 973.20(5)(d) requires that the court distinguish between crime victims and insurers. The statute provides that the sentencing court *632must order restitution to crime victims. However, an order for restitution to an insurer is discretionary, and is to be awarded only "[i]f justice so requires."1
¶ 66. Rather than requiring adherence to the plain language of the statute, the majority looks the other way and concludes that the circuit court "appears to have applied the correct legal standard." Here, there was no application whatsoever of the "if justice so requires" standard. A review of the record reveals that the circuit court's only articulated standard was: "they paid money." Because the circuit court's determination contravenes the plain language of the statute, its history, and its purposes, I respectfully dissent.
¶ 67. In this case, the circuit court ordered $44,808.60 in restitution to Canadian National and $3,175.67 in restitution to Met Life, both insurers. The majority opinion dispenses with its analysis of whether the circuit court properly exercised its discretion in two paragraphs. It reports that the circuit court "appears to have applied the correct legal standard." Majority op., ¶ 62. The opinion then concludes, "There is no evidence that the court applied the wrong legal standard or did not ground its decision on a logical interpretation of the facts when it decided justice required reimbursing an insurer who has compensated a victim for a loss." Id.
¶ 68. The circuit court, however, never made a determination that justice required reimbursing the *633insurers. Rather, it tallied all the claims without distinguishing the claims made by the insurers from the claims made by the victims of the crime: "So, we have three parties2 out close to seventy thousand dollars, and rising, and I would find that they are all victims." Defense counsel objected to the circuit court lumping the insurance companies together with the victims and making no distinction between the two. The circuit court's sole response and analysis justifying the award was set forth in three words: "They paid money."
Defense counsel: Your Honor, then I would further object to Canadian National being allowed to proceed with the claim in this case because, certainly, 973.20 authorizes payment of restitution to a victim, but I do not believe that Canadian National can be construed as a victim in this case.
The Court: They paid money.
The circuit court simply concluded that because the insurers "paid money," they were victims entitled to restitution.
¶ 69. The restitution statute, however, explicitly distinguishes between victims of crime and those who compensate the victims' losses. Section 973.20(lr) states that "the court. . . shall order the defendant to make full or partial restitution... to any victim of a crime considered at sentencing[.]" (Emphasis added.) In contrast, the court "may require" reimbursement to "any insurer, surety or other person who has compensated a victim for a loss otherwise compensable under this section" "[iff justice so requires." Wis. Stat. §§ 973.20(5), (5)(d) (emphasis added).
*634¶ 70. On its face, the statute differentiates between victims and those who have compensated a victim. A court may order restitution to an insurer "if justice so requires." This marks a change from prior law, which did not require the court to determine that justice required restitution to an insurance company.3
¶ 71. This policy choice is reflected in the legislative history of the statute. Wisconsin's restitution statutes were significantly overhauled by 1987 Wisconsin Act 398 and 1989 Wisconsin Act 188, which added provisions intended to protect crime victims. To that end, the amendments made district attorneys responsible for gathering information about victim losses and presenting that information to the sentencing court. See Wis. Stat. §§ 973.20(13)(b), (c) (1987-88). The amendments provided that the sentencing court "shall order" restitution "to any victim of the crime or, if that person is deceased, to his or her estate" regardless of whether the defendant was incarcerated or placed on probation.4 See Wis. Stat. § 973.20(1) (1987-88). In addition, the amendments allowed unpaid restitution to be converted to a civil judgment when the defendant was released from probation or parole, or immediately if neither probation nor a prison sentence was imposed.*6355 See id,.-, see also Wis. Stat. § 973.20(1) (1989-90) (providing that restitution "is enforceable in the same manner as a judgment in a civil action").
¶ 72. Collectively, the amendments made it easier for victims to be compensated for their losses without undergoing civil litigation.6 This legislative purpose is also reflected in Wis. Stat. Ch. 950, Rights of Victims and Witnesses of Crime, which provides that a crime victim has a right to restitution and to a judgment against the defendant for unpaid restitution. See Wis. Stat. §§ 950.04(lv)(q), (r).
¶ 73. At the same time, the legislature inserted the directive that a court determine whether "justice so requires" when ordering restitution to "an insurer, surety or other person who has compensated a victim for a loss[.]" Compare Wis. Stat. § 973.20(5)(d) (1987-88) and Wis. Stat. § 973.09(l)(b) (1985-86). The amendments also required that restitution to victims be paid before *636restitution to "other persons," including insurers. Wis. Stat. § 973.20(6). By adding these provisions, the legislature clearly distinguished between victims and their insurers, who are not the direct victims of a crime. The legislature applied a heightened legal standard — "if justice so requires" — to claims for restitution by insurers.
¶ 74. This standard was proposed by the Judicial Council Restitution Committee and incorporated into 1987 Wisconsin Act 398. The prefatory note to the act states that "[i]n the course of its work, the restitution committee examined the federal laws governing restitution to crime victims and this proposal includes several provisions drawn from those federal laws." Judicial Council Prefatory Note, 1987 Wis. Act 398.
¶ 75. The federal statute explicitly distinguished between victims and insurers, providing that restitution should not be ordered for insured losses, except that "in the interest of justice," the court may "order restitution to any person who has compensated the victim for such loss[.]" See 18 U.S.C. 3663(e)(1) (1988) (originally enacted as Victim and Witness Protection Act of 1982, 96 Stat. 1248, 1253-54).7
*637¶ 76. On October 18, 1985, the Restitution Committee discussed the federal standard for restitution to those who made payments compensating a crime victim.8 Committee reporter James Fullin advised the committee that the "federal law prohibits imposing restitution with respect to a loss for which the victim has received compensation, except that the court may, in the interest of justice, order restitution to the person who has compensated the victim."9 This standard, modified to "if justice so requires," was one of the provisions drawn from the federal laws that made its way into the Restitution Committee's legislative proposal.10 The committee's proposed legislation was passed by the legislature without amendment. See 1987 Wisconsin Act 398.
¶ 77. In addition to the plain language of the statute and its history which compel a conclusion that crime victims and insurance companies are to be treated differently, such a difference in treatment is also supported by the purposes of the restitution statute. A restitution award to an insurance company that is beyond the defendant's means may undercut the purposes of criminal restitution. The dual purposes of restitution are compensating the victim and rehabilitating the defendant. See Huml v. Vlazny, 2006 WI 87, ¶ 38, 293 Wis. 2d 169, 716 N.W.2d 807. "If a restitution order does not serve both purposes, restitution is not appropriate." Id.
*638¶ 78. Restitution paid to an insurance company does not further the goal of compensating the crime victim. By definition, the victim has already been compensated by the insurer.
¶ 79. Likewise, a restitution award to an insurance company may not serve the rehabilitative purpose of restitution. Wisconsin courts have explained, "Restitution . . . may serve to strengthen [an offender's] sense of responsibility and teach the offender to consider more carefully the consequences of his or her actions." State v. Kennedy, 190 Wis. 2d 252, 257-58, 528 N.W.2d 9 (Ct. App. 1994). Successfully paying restitution can give a defendant "a positive sense of having earned a fresh start and will [provide] tangible evidence of his or her capacity to alter old behavior patterns and lead a law-abiding life." Huggett v. State, 83 Wis. 2d 790, 798, 266 N.W.2d 403 (1978).
¶ 80. Although "[s]ome financial discomfort is consistent with the rehabilitative goal of probation and restitution," State v. Foley, 153 Wis. 2d 748, 754, 451 N.W.2d 796 (Ct. App. 1989), ordering an amount of restitution which is beyond the defendant's means undermines the defendant's sense of responsibility. See State v. Jackson, 128 Wis. 2d 356, 363, 382 N.W.2d 429 (1986). Absent a meaningful determination of the defendant's ability to pay, restitution loses a large part of its rehabilitative significance. See majority op., ¶ 24.
¶ 81. Thus, the statute treats crime victims and their insurers differently with regard to ordering restitution. Because the statute distinguishes between crime victims and insurers, a sentencing court must do so as well. Additionally, the court must explain its discretionary decision that "justice requires" ordering restitution for the benefit of an insurer.
*639¶ 82. The majority incorrectly concludes that "[tjhere is no evidence that the court applied the wrong legal standard or did not ground its decision on a logical interpretation of the facts[.]" See majority op., ¶ 62. Discretion is not appropriately exercised when, as here, a circuit court simply tallies up all claims and makes a finding of the total amount of loss.11 The circuit court failed to distinguish between the crime victims and the insurers who had reimbursed their losses. In fact, the court wrongly determined that the insurers were victims of the crime. The only reason proffered by the circuit court for ordering this restitution, that the insurers "paid money," is not sufficient to support a finding that justice requires their reimbursement.
¶ 83. The circuit court's determination contravenes the plain language of the statute, its history, and its purposes. Because the circuit court failed to distinguish between crime victims and insurers, and failed to apply the correct legal standard, I conclude that the circuit court erroneously exercised its discretion when it ordered $48,000 in restitution to Canadian National and Met Life. Accordingly, I respectfully dissent.
¶ 84. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this dissent.There may also be defects in the circuit court's determination of Fernandez's ability to pay. Based on the sparse record made by the circuit court, this court struggled in its review. See majority op., ¶ 15, n.13 ("It would have been preferable for the circuit court to make a more complete and precise record[.]"). I write separately, however, to note that the statute provides different standards for ordering restitution to crime victims and to insurers.
There were actually four parties that presented restitution claims: Roberts, Met Life (Roberts's insurer), Dalka, and Canadian National (Dalka's insurer).
See Wis. Stat. § 973.09(l)(b) (1985-86) ("If the court places the person on probation, the court shall require restitution designed to compensate the victim's pecuniary loss resulting from the crime to the extent possible.... A court may require that restitution be paid to an insurer or surety which has paid any claims or benefits to or on behalf of the victim.")
With minor exceptions, the prior statutes permitted restitution only when the defendant was placed on probation. Thus, the sentencing court was required to choose between incarceration and restitution for the benefit of victims.
Under prior statutes, release from probation extinguished the obligation to pay restitution. See Huggett v. State, 83 Wis. 2d 790, 266 N.W.2d 403 (1978).
See Testimony of Senator Barbara Ulichny before the Senate Judiciary and Consumer Affairs Committee, January 9, 1990 ("Crime victims experience many losses, many of which, such as a sense of personal safety or physical health, can never be replaced. One loss that can be measured and alleviated, however, is economic loss. Requiring offenders to make restitution can help victims recover property damages, medical bills, lost wages, and other expenses.") (on file in the Records of the Judicial Council, Wisconsin State Law Library, Madison, WI); see also Testimony of Richard H. Anderson, Director, Office of Crime Victim Services, January 9, 1990 ("This bill extends to crime victims the right to at least attempt to collect the restitution which has been awarded, without the additional cost of filing a separate civil action.") (on file in the Records of the Judicial Council, Wisconsin State Law Library, Madison, WI).
The federal statute has been amended several times since 1988, but it continues to distinguish between victims and their insurers:
(2) For the purposes of this section, the term "victim" means a person directly and proximately harmed as a result of the commission of an offense for which restitution may he ordered including, in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant's criminal conduct in the course of the scheme, conspiracy, or pattern....
(3) The court shall also order, if agreed to by the parties in a plea agreement, restitution to persons other than the victim of the offense.
18 U.S.C. §§ 3663A(a)(2)-(3) (2000).
Judicial Council Restitution Committee, Summary of Proceedings, October 18,1985 (on file in the Records of the Judicial Council, Wisconsin State Law Library, Madison, WI.)
Id. at 4 (emphasis added).
Judicial Council Restitution Committee, Draft C, January 16, 1986 (on file in the Records of the Judicial Council, Wisconsin State Law Library, Madison, WI.)
The term "discretion" contemplates more than merely giving an answer. It contemplates "a process of reasoning which depends on facts in the record or reasonably derived by inference from the record that yield a conclusion based on logic and founded on proper legal standards." State v. Delgado, 223 Wis. 2d 270, 280, 588 N.W.2d 1 (1999). The record must reflect the circuit court's reasoned application of the appropriate legal standard to the relevant facts of the case. Id. at 281.