Restitution aims to restore victims to where they stood before they became victims of crime. Restitution laws allow (and sometimes require) judges to order defendants to pay victims for financial losses related to their crimes.
This article discusses restitution basics like: Who qualifies as a victim? What injuries or losses does restitution cover? And how are restitution orders decided and enforced?
The purpose of restitution is to make victims—to the extent possible—whole again. Restitution is not a punishment or an alternative to imprisonment, fines, and probation. Restitution is a debt owed to victims who suffer real harm.
Restitution can play a critical role in a defendant's rehabilitation. Paying restitution requires defendants to be productive and directly face the consequences of their crimes. Restitution also saves judicial resources. Victims who receive full restitution don't have to file a separate civil lawsuit to recover money damages.
Restitution money goes to crime victims, who can include:
Direct victims. Direct victims are any persons who suffer physical, psychological, or financial harm because (or as a direct result) of a defendant's crime. Direct victims can be individuals or businesses.
Indirect victims. Courts might order defendants to pay restitution to indirect victims, such as family members of direct victims. For example, the surviving members of homicide victims or children who witness acts of domestic violence are entitled to restitution in some states.
Third parties. Many states require defendants to pay restitution to third parties, like insurance companies and victim compensation programs, who assist victims recover after a crime.
Government agencies. Defendants might be ordered to pay restitution to government agencies for money spent to investigate crimes that have no direct victims, like drug offenses and welfare fraud.
Typically, direct and indirect victims are first in line to collect restitution payments, before third parties and government agencies.
Restitution laws vary from state to state, but defendants must usually pay victims for their economic losses, including:
Many crime victims experience nonfinancial losses, like pain and suffering. Judges generally can't order restitution for these types of losses. But judges routinely order defendants to pay for the cost of a victim's counseling.
Restitution is typically part of the sentencing process. Victims submit documentation of their losses (receipts, bills, and repair estimates) to the prosecutor or the probation department. In most serious misdemeanor and felony cases, the probation department prepares a presentence report that includes a preliminary assessment of what restitution, if any, is appropriate. All of this information will be presented to the court and the defendant.
At a restitution hearing, the prosecution must prove the victim's right to restitution and the appropriate amount of restitution to a judge by a preponderance of the evidence (more likely than not) standard. Defendants have a right to challenge the information provided by the victim and may cross-examine witnesses and present their own evidence, including expert witnesses.
Restitution hearings are not required in all cases. Defendants often agree to an amount of restitution in a plea bargain or at sentencing. The victim's wishes concerning restitution are relevant, but ultimately, the judge decides what restitution to order.
Courts generally must consider the defendant's ability to pay when setting the amount of restitution and payment schedule. Judges consider the defendant's present financial circumstances and future financial prospects. For example, a judge might not order a permanently disabled defendant who has no assets to pay restitution. But a seasonally employed defendant who isn't working at the time of sentencing might be ordered to pay restitution when work resumes.
The fact that a defendant qualifies for a court-appointed attorney does not prohibit the same court from finding that the defendant has the ability to pay restitution.
In some cases, the victim's economic losses aren't known at the time of sentencing or might only be anticipated, like future counseling expenses. In these cases, judges routinely order restitution in an amount to be determined at a later date. Defendants have a right to notice and a hearing whenever restitution is ordered.
A court order for restitution doesn't guarantee that a defendant will pay restitution. Restitution payments are dependent on the defendant's income and assets. Prosecutors do their best to collect restitution, but most victims receive partial restitution at best from defendants.
Defendants who owe restitution typically must work while they are incarcerated. A portion of what they earn goes toward restitution; however, prison wages are as low as $0.08 an hour in some states and other states pay no wages at all.
Defendants who are on supervised release (probation or parole) face criminal consequences for nonpayment. Supervising officers can monitor payments and obtain the defendant's financial information. If an officer believes the defendant is willfully avoiding paying restitution, the court or officer can revoke parole or probation, which can result in the defendant's incarceration or extended supervision.
Victims might also pursue enforcement by filing the restitution order as a civil judgment. In civil court, the victim can seek civil remedies for debt collection, including wage garnishment, liens, and levies. Some states allow their tax revenue department to "capture" a defendant's tax refund or lottery winnings and turn over the money to the victim. Restitution orders remain in effect until paid in full. They cannot be discharged by bankruptcy.
If you are facing criminal charges and have questions about restitution, talk to a criminal defense lawyer. An experienced lawyer can explain the relevant restitution laws and represent you at a restitution hearing.
If you are a victim in a criminal case, talk to the prosecutor assigned to your case or a local victim assistance program to learn more about your right to restitution.