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Restitution: Making It Work (from the Dept. of Justice, Office for Victims of Crime, Legal Series, Bulletin 5, November 2002)
NCJ 189193


Bringing Criminal Debt Into Balance: Improving Fine & Restitution Collection (abstract from the Administrative Office of the United States Courts)

Victim Costs and Consequences: A New Look by Miller, Cohen , Wierseman. (from the National Institute of Justice, January 1996). (PDF 31 pages). NCJ 155282

Restorative Justice & Responsive Regulation
Restorative Justice &
Responsive Regulation

Crime Victim’s Guide to Justice
Crime Victim’s
Guide to Justice

Guia De Justicia Para Victimas Del Crimen
Guia De Justicia Para
Victimas Del Crimen
(Crime Victim’s Guide
to Justice Spanish Ed.)

Sexual Abuse Litigation: A Practical Resource for Attorneys, Clinicians, and Advocates
Sexual Abuse Litigation:
A Practical Resource for
Attorneys, Clinicians, and
Advocates

Victims and Victimization: Essential Readings
Victims and Victimization:
Essential Readings

From Victim To Victor : A Step-By-Step Guide For Ending The Nightmare of Identity Theft
From Victim to Victor:
A Step-by-Step Guide
For Ending the NIghtmare
of Identity Theft

Critical Issues in Restorative Justice
Critical Issues in
Restorative Justice

Child Support: Your Legal Guide to Collecting, Enforcing, or Terminating the Court’s Order
Child Support: Your
Legal Guide to Collecting,
Enforcing, or Terminating
the Court’s Order

Facing Violence: The Path of Restorative Justice and Dialogue
Facing Violence: The
Path of Restorative
Justice and Dialogue

Paying for Crime
Paying for Crime


Restitution



What is Restitution?

Restitution is the money that a judge orders an offender to pay to the victim. It is part of the offender’s sentence and is based on the victim’s expenses resulting from the crime and the offender’s ability to pay. The expenses might include medical/dental expenses, lost wages due to the crime or stolen or damaged property. However, court ordered restitution does not guarantee payment by the offender.

Right to Restitution

Every state gives courts the statutory authority to order restitution. In more than one-third of all states, courts are required by statute to order restitution unless there are compelling or extraordinary circumstances. Florida law is typical, providing that “in addition to any punishment, the court shall order the defendant to make restitution to the victim for:

  1. Damage or loss caused directly or indirectly by the defendant’s offense; and

  2. Damage or loss related to the defendant’s criminal episode, unless it finds clear and compelling reasons not to order such restitution.”

In many states, the law requires restitution but allows broad exceptions to that rule. For instance, Connecticut and Nevada both require restitution “if restitution is appropriate.” Oregon provides that restitution shall be ordered “whenever possible.” Regardless of whether restitution is mandatory, about one-quarter of all states require courts to state on the record the reasons for failing to order restitution or for ordering only partial restitution. This requirement is thought to further encourage courts to consider restitution to the victim when sentencing convicted offenders.

Where victims have a clear statutory right to restitution, the right has been found to apply to cases that result in a plea agreement. The California Court of Appeals recently ruled that restitution must be a part of every sentence, regardless of a plea agreement to the contrary:

“The Legislature left no discretion or authority with the trial court or the prosecution to bargain away the victim’s constitutional and statutory right to restitution. As such, it cannot properly be the subject of plea negotiations. ” Oklahoma statutes expressly require that restitution to the victim be part of every plea agreement. Florida requires that an order of restitution entered as part of a plea agreement is as definitive and binding as any other order of restitution, and a statement to such effect must be made part of the plea agreement.

Although most restitution laws apply to crime victims in general, many states have enacted specific directives to order restitution to victims of particular offenses, such as crimes against the elderly, domestic violence, sexual assault, hate crimes, child abuse, child sexual abuse, drunk driving, and identity fraud.

Eligibility for Restitution

Generally, restitution laws provide for restitution to the direct victim(s) of a crime, including surviving family members of homicide victims. Many states also authorize an order of restitution to third parties, including insurers, victim compensation programs, government entities, and victim service agencies. Several states authorize restitution to any entity that has provided recovery to the victim as a collateral source. Alaska authorizes a court to order restitution “to a public, private, or private nonprofit organization that has provided . . . counseling, medical, or shelter services to the victim or other person injured by the offense.” In a recent New York case, an appellate court ruled that a defendant could be required to make restitution to a victim’s employer for the victim’s sick leave.

Restitution isn’t just limited to victims of crimes for which a defendant was convicted. When a defendant is charged with similar crimes against many individuals, as in the case of a serial rapist or a perpetrator of large-scale fraud, he or she may plead guilty to one or more counts in exchange for an agreement by the prosecutor to drop other charges. In such a case, as part of the plea agreement, the defendant may agree to pay restitution to all victims. Many states specifically allow this by statute. For example, Idaho restitution law states that the court may, with the consent of the parties, order restitution to victims, and/or any other person or entity, for economic loss or injury for crimes which are not adjudicated or are not before the court.

Losses for Which Restitution May Be Ordered

Restitution may be ordered to cover numerous crime-related expenses incurred by a victim. Typically, statutes specify that the following may be included in setting the restitution amount:

- Medical expenses.
- Lost wages.
- Counseling expenses.
- Lost or damaged property.
- Funeral expenses.
- Other direct out-of-pocket expenses.

Medical expenses are defined as medical services and devices (often including nonmedical care and treatment rendered in accordance with a recognized method of healing), physical therapy, and rehabilitation.

Lost wages can include time lost from work because of participation in the court process. Courts have even applied this to self-employed individuals who have had to close a business or cease working while testifying. California law specifies that parents can receive restitution for wages lost while caring for an injured minor victim. Although Arizona statutea are not so specific, its Court of Appeals has interpreted that statute to reach the same conclusion: the “parents . . . stood in the shoes of the victim and were entitled to restitution for their lost wages incurred while taking her to medical appointments and juvenile court hearings on this case.”

Counseling expenses are generally recoverable. Many states extend restitution for counseling expenses to victims’ family members as well. Some states limit family counseling expenses to cases of homicide, whereas others allow such expenses whenever the counseling is related to the commission of the offense.

In homicide cases, a family’s funeral and travel expenses and the ordinary and reasonable attorney fees incurred in closing the victim’s estate have been found to be proper restitution items. Other funeral expenses that might be covered include a headstone, flowers, chapel music, minister honorarium, and chapel fees.

Restitution may also be ordered for other out-of-pocket expenses directly related to the crime. In cases of identity fraud, this may include expenses for correcting a victim’s credit history and costs incurred in any civil or administrative proceeding needed to satisfy any debt or other obligation of the victim, including lost wages and attorney fees.

Many states authorize courts to order defendants to pay interest on the restitution. For example, California law provides that a restitution order shall include interest, at the rate of 10 percent per annum, that accrues as of the date of sentencing or loss, as determined by the court. In some states, attorney fees are also recoverable. In Oregon, attorney fees have been found by the courts to be recoverable as special damages if incurred to ensure indictment and criminal prosecution; the victim may later file a civil suit. California restitution statutes provide for recovery of attorney fees and costs incurred for collecting restitution.

In some states, future damages can be awarded. Iowa law specifically provides for future damages, stating that where the full extent of the loss is not known at the time of sentencing, the court is to issue a temporary order for a reasonable amount of restitution identified at that time. The court is authorized to issue a permanent supplemental order at a later date, setting out the full amount of restitution. The Arizona Court of Appeals ruled that future damages were a permissible restitution element, reasoning that disallowing future expenses would defeat the legislative purpose of restitution, which is to make the victim whole.

Meanwhile, states like Wyoming have a detailed statutory scheme for ordering restitution for long-term medical expenses. Under its law, the court is to consider and include as a special finding each victim’s reasonably foreseeable actual pecuniary damage that will result in the future as a result of the defendant’s criminal activity. Thus, a restitution order for long-term physical health care must be entered for any such damages.

Not every state allows restitution for future expenses, however. Indiana courts have stated that only actual costs incurred by the victim before sentencing may be considered for a restitution order.

Considerations in Ordering Restitution

Restitution laws generally set out the elements the court is to consider before it rules on restitution. Alaska law provides that “in determining the amount and method of payment of restitution, the court shall take into account the: 1) public policy that favors requiring criminals to compensate for damages and injury to their victims; and 2) financial burden placed on the victim and those who provide services to the victim and other persons injured by the offense as a result of the criminal conduct of the defendant.”

Most states also require the court to consider the current financial resources of the defendant, the defendant’s future ability to pay, and, in some states, the burden restitution will place on the defendant and his or her dependents. States are beginning to move away from consideration of the defendant’s ability to pay when setting the restitution amount. However, the defendant’s assets and earning potential are taken into account in setting the payment schedule. Arizona law states that the court shall not consider the economic circumstances of the defendant in determining the amount of restitution, but the court is required to consider the economic circumstances of the defendant in specifying the manner of payment. Similarly, in Florida, the court is charged only with considering the loss sustained by the victim in determining whether to order restitution and the amount of restitution. At the time the restitution order is enforced, the court is to consider the defendant’s financial resources, the present and potential future financial needs and earning ability of the defendant and his or her dependents, and other appropriate factors.

Restitution Payment Supervision

The offender’s probation officer is the person responsible for creating a payment schedule and monitoring the payments made to victims. If victims do not receive scheduled payments, they should contact the offender’s probation officer through the county probation or court services agencies. Corrections facilities send restitution payments to victims on various schedules. Some distribute payments monthly or quarterly, while others may pay restitution on a yearly basis. It is important that victims keep the monitoring agency informed of any address changes. If the offender is in prison, a payment schedule is determined by the inmate’s case worker. If he/she is working while in prison, restitution can be taken from prison wages and forwarded to the victim on a specified payment schedule. Prison wages are minimal and take a lengthy time to accrue significantly.

What If the Offender Doesn’t Pay?

If the offender has not paid restitution according to the judge or probation officer’s guidelines, victims have the right to request a probation review hearing. The probation officer can request a hearing at any time, and must ask for a hearing if the restitution has not been paid within a specified timeframe prior to the end of the offender’s probation. If the offender has been released from prison, they can also be held responsible for payment during their supervised release period. If payment does not occur during this period, the offender can be sent to prison for the remainder of the sentence.

At a review hearing, the judge may:

- Order the offender to pay all of the restitution within the remaining sentence
- Extend the offender’s probation to allow more time for payment
- Send the offender to jail/prison (this may cancel the restitution order)
- Suspend the offender’s driver’s license (some states)
- Allow the offender to complete probation without paying restitution
- Order a civil judgment against the offender for the balance of the unpaid restitution.

Other Options for Repayment

Although restitution may be part of a court imposed sentence, this does not guarantee payment to victims. This is a unfortunate and frustrating ordeal for victims who are attempting to recover emotionally, physically and financially from the aftermath of a crime. There are several options which may assist victims in recovering out-of-pocket expenses related to the crime, including:

Court-Ordered Restitution Writ of Execution

If victims want to pursue collecting the money themselves, they can contact the court administrator to request a Writ of Execution and an Order for Disclosure to obtain lists of the offender’s property, employment and bankrecords. The local sheriff executes this order. Some property may be seized in this manner, but many items are exempt from confiscation. There are fees associated with this type of collection.

Collection Agency/Private Attorney

Victims may wish to attempt collection of restitution through a private collection agency or private attorney. Although expenses associated with these options vary, the costs involved may far outweigh the realistic benefit. If the offender is a juvenile, the offender’s parents can be held accountable for restitution up to set limits in each state. A separate civil action needs to be brought against the parents which is usually handled in Small Claims or Conciliation Court. There are nominal filing or court fees associated with this recovery process.

Crime Victim Compensation

This is financial assistance from the government and is available for any victim of a violent crime regardless of whether the case is charged or if the offender is found guilty. Reparations does not pay for personal property loss. There is no application charge.

Civil Judgement

Victims can also try to collect the order through civil court (suing). The court can change the restitution order to a civil judgment by filing an Affidavit of Identification. This action will create a lien against the offender/ debtor for up to 10 years to prevent them from obtaining financing for a home, car, credit card, etc., until the restitution is paid. Once a civil claim is filed, information about the victim becomes public. There is no filing cost to the victim(s) named inthe restitution order.

Revenue Recapture

Restitution is collected from state tax refunds owed to the defendant. Funds can be intercepted from individual income tax refunds, property refunds or rental tax credits, political contribution refunds and lottery winnings in most states. The claim must be made through a state authorized agency, i.e., district court, corrections. There is a nominal charge for each payment received.


Contacts for Information

Start locally with your local prosecutor by checking the government section of the phone book Blue Pages. Local information can usually also be found via the State Attorney’s office or parole/probation department. For national-level assistance, contact:

American Probation and Parole Association
2760 Research Park Drive
Lexington, KY 40511-8410
Phone: (859) 244-8203
Fax: (859) 244-8001
Website: http://www.appa-net.org/
Email: appa@csg.org

American Prosecutors Research Institute
National District Attorneys Association
99 Canal Center Plaza Suite 510
Alexandria, VA 22314
(703) 549 - 4253
Website: http://www.ndaa.org/


Articles and Sources for More Information on Restitution

Beatty, David. (1991). "Legal Issues." In American Parole and Probation Association and the Council of State Government, Participant Manual: Offender Supervision and Restitution Project. Lexington, KY. 1993.

Burnley J. (now J. Sigmon), and M. Murray. 1997. Restitution Reform: The Coordinated Interagency Approach. Washington, DC: U. S. Department of Justice, Office for Victims of Crime. Available from the Office for Victims of Crime Resource Center by calling 1-800-627-6872.

Butts, Jeffrey and Howard Snyder. (1992). Restitution and Juvenile Recidivism. Washington, DC: Office of Juvenile Justice and Delinquency Prevention, U.S. Department of Justice.

Frank, Linda. F. 1992. "The Collection of Restitution: An Often Overlooked Service to Crime Victims." St. John’s Journal of Legal Commentary 8: 107-34. Referencing J. Stark and H. Goldstein, The Rights of Crime Victims (American Civil Liberties Union Handbook), 1985.

Harland, Alan. T., and C. J. Rosen. 1990a. "Impediments to the Recovery of Restitution by Crime Victims." Violence and Victims 5.

Harland, Alan., and C. Rosen. 1990. "Restitution to Crime Victims as a Presumptive Requirement in Criminal Case Dispositions." In A. R. Roberts, ed., Helping Crime Victims: Research, Policy and Practice. Newbury Park, CA: Sage Publications, 234.

Hudson, J., and B. Galaway. 1981. "Restitution and the Justice Model." In D. Fogel and J. Hudson, eds., Justice as Fairness. Cincinnati, OH: Anderson Publishing, 52.

Karmen, A. 1990. Crime Victims: An Introduction to Victimology. Belmont, CA: Wadsworth Publishing, 279-80.

Mark, B., (1987). "The Scope of Criminal Restitution: Awarding Unliquidated Damages in Sentencing Hearings." 17 Capital U.L. Rev. 55.

McGillis, Daniel. 1986. Crime Victim Restitution: An Analysis of Approaches. Washington, DC: U.S. Department of Justice, National Institute of Justice.

Miller,, T., and L. Blincoe. 1994. "Incidence and Cost of Alcohol-involved Crashes." Accident Analysis & Prevention 26 (5).

National Center for Victims of Crime (NCVC). 1999. Legislative Database. Arlington, VA.

Office for Victims of Crime, US Department of Justice Office of Justice Programs. OVC Bulletin, Legal Series #5: "Restitution: Making It Work". 2002.

Rider, Nancy and Franklin Shippen. (1992). Prosecutor’s Guide to Criminal Fines and Restitution. Washington, DC: Executive Office for U.S. Attorneys, U.S. Department of Justice.

Seymour, A. 1997. "Victim Restitution." Promising Practices and Strategies for Victim Services in Corrections. Arlington, VA: National Center for Victims of Crime.

Shapiro, C. 1990. "Is Restitution Legislation the Chameleon of the Victims Movement?" In B. Galaway and J. Hudson, eds., Criminal Justice, Restitution, and Reconciliation, supra., 74-75.

Sinclair, J., Assistant Director of the Department of Community Supervision and Corrections in Tarrant County, TX. 21-23 January 1999. Remarks at the Partnership Between Criminal Justicy Policy Makers and Victims Conference, sponsored by the Council of State Governments, Eastern Regional Conference and the Office for Victims of Crime.

Smith, Barbara, Robert Davis, and Susan Hillenbrand. (1989). Improving Enforcement of Court-Ordered Restitution, Executive Summary: A Study of the American Bar Association, Criminal Justice Section, Victim Witness Project. Chicago, IL: The American Bar Association.

Soderland, C., Chief Deputy Director, California State Board of Control. 21-23 January 1999. Remarks at the Partnership Between Criminal Justicy Policy Makers and Victims Conference, sponsored by the Council of State Governments, Eastern Regional Conference and the Office for Victims of Crime.

Upson, Lisa. (1987). "Criminal Restitution as Limited Opportunity." 12 New England J. of Crim. L. and Confinement 243.

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Last Updated: May 5, 2011