Criminal Restitution

The order, entered at sentencing, requiring a defendant to repay the victim's losses caused by the offense - what losses it covers, how it differs from a fine and from a civil judgment, the payment schedule and enforcement, and why it survives bankruptcy and the end of the sentence.

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What it means

Restitution is a sentence, not a debt in the ordinary sense: an order that the defendant pay the victim of the offense for the losses it caused. In the federal system and most states it is mandatory for crimes with an identifiable victim who suffered a pecuniary loss, and the court must order it regardless of the defendant's ability to pay, considering that ability only in setting the payment schedule. It covers the direct losses the statute lists - the value of property taken or damaged, medical and counseling expenses, lost income, funeral costs, and in many jurisdictions the costs of participating in the investigation and prosecution - and it is limited to losses caused by the conduct of conviction; losses from dismissed counts or uncharged conduct are included only where the defendant agrees in the plea, and consequential losses such as emotional distress or diminished credit are generally excluded. It is separate from a fine, which is paid to the state, and from forfeiture, which takes the proceeds of the crime.

The amount is decided at sentencing on the prosecution's presentation and the presentence report, by a preponderance of the evidence, with the defendant entitled to contest the figures; where the loss cannot be determined by sentencing, the court may set a later hearing. The order names the victim and the amount, and where several defendants caused one loss the court may make them jointly and severally liable or apportion it. Payment is usually ordered in installments as a condition of probation or supervised release, through the clerk of court, and an unexplained failure to pay by a defendant who can is a violation that may lead to revocation - though a defendant who genuinely cannot pay may not be imprisoned for that reason alone.

A restitution order is enforceable as a civil judgment, with the lien, garnishment and levy remedies that implies, for a period long after the sentence ends; federal orders create a lien on all of the defendant's property. It is not discharged in bankruptcy under either consumer chapter, and it is not extinguished by the completion of the sentence or by an expungement in most states. The victim may also sue civilly for the same loss, with any restitution paid credited against the judgment, and a defendant's conviction is generally conclusive of liability in that suit.

Where this comes from

When people hire a lawyer for this

Restitution is decided at the hearing where the defense is usually thinking about custody, and it is frequently the longest-lasting consequence of the case: a lawyer should demand the loss documentation, contest amounts that were not caused by the conduct of conviction, resist a plea term that stipulates to losses from dismissed counts, and ask for a schedule the defendant can actually keep. A defendant who has completed the sentence and still owes restitution should get advice before assuming it has lapsed, because in most systems it has not.

Worried about the cost? A lawyer can be hired for one part of a case only (limited-scope representation), may be paid from what a claim recovers (contingency fee), or may be free through a pro bono program or legal aid; a court can also waive its own filing fees.

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Related terms

Other entries in the same area of law, each written from the same primary sources.

• ArraignmentThe first court appearance in a criminal case, where the charges are read and a plea is entered.
• Bail and Pretrial ReleaseThe decision about whether someone stays in custody while their case is pending - which is about appearance and safety, not about guilt.
• Bench Warrant and Failure to AppearThe arrest warrant a judge issues from the bench when a defendant misses a court date or violates a court order - what it authorizes, the separate failure-to-appear charge and bond forfeiture that often follow, and how a person clears one by surrendering on their own terms rather than being picked up.
• Double JeopardyThe constitutional bar on being tried twice for the same offense after an acquittal or conviction, or punished twice for it - when jeopardy attaches, what counts as the "same offense", the mistrial and appeal exceptions, and why a state and the federal government may each prosecute the same act.
• Expungement and Record SealingCourt processes that erase or restrict access to a criminal record, available only in defined circumstances that vary by state.
• Felony and MisdemeanorThe basic division of criminal offenses by seriousness - which drives the procedure, the possible sentence, and the consequences that outlast it.
• Grand Jury and IndictmentA closed proceeding in which citizens decide whether there is enough evidence to charge someone - not whether they are guilty.
• Miranda RightsThe warning police must give before questioning someone in custody - and the reason a missing warning suppresses a statement rather than ending a case.
• Motion to Suppress (Exclusionary Rule)The pretrial request to keep evidence out of a criminal trial because it was obtained in violation of the Constitution - an unlawful search, an involuntary or un-warned confession, a suggestive identification - the hearing it triggers, the "fruit of the poisonous tree" rule, and the exceptions that let evidence in anyway.
• Plea BargainAn agreement resolving a criminal case by guilty plea, usually in exchange for reduced charges or a sentencing concession.
• Preliminary HearingAn early court hearing at which a judge decides whether there is enough evidence for a case to proceed - the defense's first real look at it.
• Pretrial Diversion and Deferred AdjudicationThe programs that let an eligible defendant avoid a conviction by completing conditions - treatment, classes, community service, restitution - after which the charge is dismissed; the difference between diversion before a plea and deferred adjudication after one, and what each does to the record.
• Probable CauseThe level of justification the Fourth Amendment requires before police may arrest someone or search a place - more than a hunch, and less than proof.
• Probation and Parole ViolationWhat happens when someone under supervision is said to have broken its conditions - a proceeding with fewer protections than the trial that preceded it.
• Right to a Speedy TrialThe constitutional guarantee that a criminal case be brought to trial without unreasonable delay, and the statutes in the federal system and most states that put a clock on it - what starts the clock, what stops it, why a defendant's own motions extend it, and the remedy of dismissal when it runs out.
• Right to Counsel and the Public DefenderThe Sixth Amendment right to a lawyer in a criminal case, including one paid for by the state if the defendant cannot afford one.
• Search WarrantA judge's written authorization to search a specified place for specified things - and the exceptions that let police search without one are broad.
• Self-Defense and JustificationThe defense that a use of force was lawful because it was necessary to protect oneself or another from imminent unlawful force - the reasonableness and proportionality requirements, the duty-to-retreat and stand-your-ground split among the states, the castle doctrine, and who bears the burden once the defense is raised.
• Sentencing and EnhancementsHow a criminal sentence is decided after a plea or verdict - the statutory range, the guidelines or presumptive scheme the jurisdiction uses, the enhancements for prior convictions, weapons, victims and quantities that raise it, the presentence report, and the constitutional rule that any fact raising the maximum must be found by a jury.

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