Restitution is a court-ordered payment made by the perpetrator of a crime to the victims for their economic loss. Full restitution restores the crime victim financially to the point they were before the crime.
This article discusses who is eligible for restitution, how they get it, and the challenges of receiving payment from a criminal defendant.
Who Is Eligible for Restitution?
Victims of crime who can show financial losses due to the defendant's crime are eligible to get restitution in criminal cases. For example:
- A graffiti artist who spray-paints the side of a home must reimburse the homeowners
- A robber who broke his victim's arm in a robbery must compensate the victim for his medical expenses
Judges often order restitution in cases where victims suffered some financial setback due to the crime. If a judge orders partial restitution, many states require the rationale stated on the record. A crime victim can also seek money damages by suing the offender in civil court. For example, victims of sexual assault can file a civil lawsuit besides the charges brought by prosecutors.
When Does a Judge Order Restitution?
The prosecutor will ask for crime victim compensation as part of a criminal case's plea deal or sentence. It may also get added to a sentence as a result of the victim impact statement, which happens at the time of sentencing. The victims and family members can explain to the judge how the crime has affected them.
A criminal court judge will typically order restitution as part of a sentence that includes:
- Prison time
Restitution differs from a fine. Restitution gets paid to the victim of a crime. A fine punishes an offender, and the government receives it. The court can also order restitution ordered on its own as an alternative sentence.
The judge may schedule a separate restitution hearing if the victim's costs are unknown. Or if the defense contests the defendant's ability to pay, their financial resources, or claims the requested amount is too high.
In some states, the judge can order restitution and determine the total amount later. For example, suppose a victim suffered an extreme injury and may or may not regain full function. In that case, the cost of rehabilitation isn't known for some time.
How Is Restitution Calculated?
The criminal court judge determines the amount of restitution the defendant must pay. While states differ in how they calculate restitution, they usually factor in the following:
- Direct cost of property damage
- Medical expenses (current and sometimes future)
- Funeral expenses
- Counseling expenses for victims
- Lost income while the victim recovers
The prosecutor needs to know the victim's losses directly from the crime. The victim can provide this information in the following forms:
- Medical bills
- Receipts for repairs
- Receipts for replacement items
- Documented lost wages
- Testifying at a restitution hearing
Restitution does not usually cover legal fees, although some states, like California, allow for recovery of "reasonable" attorneys' fees. The restitution amount also does not include pain and suffering or emotional distress. Some states have mandatory restitution for violent offenses such as sexual assault.
What If There is a Plea Deal?
Crime victims have a legal right to request restitution for the losses they suffered due to a crime. Suppose the defense is negotiating a plea deal with the prosecutor. In that case, it may include the payment of restitution as part of the deal.
In some states, even if charges get dropped as part of a plea deal, the perpetrator may be court-ordered to pay restitution.
How Are Restitution Payments Made?
The collection of restitution and its disbursement may differ from state to state. Still, typically, it will be payable through the court or probation department. The restitution payment schedule is usually monthly. But, some defendants pay in a lump sum settlement.
An inmate trust account gets created when an inmate enters prison. The inmate uses that account for deposits or withdrawals of money they earn from any jobs they hold while in prison. (These jobs pay very low wages.)
Money in the trust account is eligible for garnishment to pay for court-ordered restitution and fines. The inmate also uses it to make purchases for their personal needs. Because an inmate's account often has a minimal balance, it can take a long time for victims to receive much restitution.
Payments could increase when an inmate gets released on probation or parole and earns more income. Regular restitution payments are often a court-ordered condition of probation.
What Type of Expenses Can Restitution Cover?
Once victims receive the restitution payments, they can spend it any way they want. There is no requirement that it gets spent for specific purposes.
For example, suppose a carjacker wrecked a victim's car. But the victim's insurance company already paid them. In that case, the victim does not have to use court-ordered restitution to repair or replace the car. They can use it for something completely unrelated to the crime.
What Can a Victim Do if Restitution Isn't Paid?
States vary on the level of help they provide to crime victims. Besides the defendant's criminal sentence, some states will help make the victim "whole" by providing compensation. Many states have a victim compensation program that can help with payments if the perpetrator cannot pay. Victims might get support from a crime victim services agency. Victims can request compensation from the North Carolina Victim Compensation Program. This applies even in cases where the defendant is acquitted, such as identity theft.
A crime victim can also contact their local district attorney's office to report that payments are not received. If restitution is a court-ordered condition of probation, non-payment is a probation violation. The offender must find work to make payments. The offender's failure to pay can result in them getting sent back to jail or prison. This is for willful defiance of the order to pay back the victims (which, ironically, would likely delay payments).
Some states allow the conversion of unpaid orders of restitution to civil judgments. In California, for example, victims can use the civil court system to collect on the debt. The civil court system may have more options for ensuring payment; for example, the courts could garnish the wages of offenders.
Learn More About Restitution from an Attorney
Restitution is a way for offenders to partially repay crime victims for their losses. If you must pay or receive restitution in a criminal or civil case, contact an experienced criminal defense attorney in your state for restitution information.