In many states, the law requires that offenders pay their victims restitution, or reimbursement for the losses victims suffered as a result of the crimes committed. It is extremely difficult, and often impossible, to negotiate restitution, since the courts are obligated by statute to order an amount of restitution that covers the damage or loss caused by the defendant's offense.
Restitution at the Judge's Discretion
The terms restitution means paying the victim of crime money to cover the losses he or she has experienced as a direct result of the criminal act. Offenders are often ordered to pay restitution as part of their sentencing. In fact, restitution is mandatory for many types of federal crimes, including all crimes of violence and property offenses. For state crimes, the judge may have more discretion on whether to order restitution; it depends on state law.
How Much is Restitution?
There is no fixed amount of restitution. Rather, it is based on the victim's actual monetary loss. The award will typically cover all out-of-pocket expenses such as lost income, child care, travel expenses, property damage, counseling expenses, insurance deductibles and medical bills. It does not cover the emotional impact of a crime such as pain and suffering, only financial losses that can actually be proven.
Restitution is always based on the victim's actual loss as evidenced by receipts and other verification. The courts do not take into account the offender's ability to pay.
Reducing the Restitution Amount
Because restitution is linked to the victim's out-of-pocket expenses, the court cannot arbitrarily reduce the amount of restitution. This means that you cannot petition the court to reduce the restitution award. Even if your income drops to zero, the obligation to pay restitution does not fall away.
The Financial Litigation Unit of the U.S. Attorney's Office is responsible for collecting restitution payments. This agency is empowered to pursue all available enforcement, including garnishing wages, levying bank accounts and seizing your personal property. If you willfully refuse to pay restitution, you may face criminal charges.
Modifying the Payment Schedule
Ideally, the restitution should be paid as a single lump sum, but the court can provide for payment by installments on certain dates in certain hardship situations. If you lose your job or your expenses suddenly go up, for example, you may be able to persuade the court to create or adjust your payment schedule.
When setting a payment plan, the court generally uses a means test to verify what you can afford to pay each month based on a percentage of your income and assets. You'll need to contact your probation or parole officer if your economic situation changes, who may decide to place you on the court list. Authorization for a modified payment plan is up to the discretion of the judge.
Getting the Victim's Consent
In most states, once you have served your sentence and are no longer on probation or supervised release, the restitution order may be converted to a civil judgment. This means that the criminal court is no longer involved in the restitution, and the victim is in charge of collecting the debt himself. In theory, you could ask the victim to forgive some or all of the restitution. However, the victim is under no obligation to speak with you, and forgiven restitution may be treated as taxable income, so you should consider the tax consequences before you start negotiations.
- Reducing restitution is extremely challenging. Seriously consider retaining representation by an attorney. Your best chance of prevailing is with an experienced attorney at your side. Local and state bar associations maintain directories of attorneys, including those who practice criminal law. Contact information for these organizations is available through the American Bar Association:
- American Bar Association
- 321 N. Clark St.
- Chicago, IL 60654-7598
Jayne Thompson earned an LL.B. in Law and Business Administration from the University of Birmingham and an LL.M. in International Law from the University of East London. She practiced in various “Big Law” firms before launching a career as a commercial writer. Her work has appeared on numerous legal blogs including Quittance, Upcounsel and Medical Negligence Experts.