In addition to receiving a jail sentence and fines, criminal defendants may be ordered to pay restitution to the victims of their crimes. Restitution is different from fines because fines are punitive, while restitution is compensatory. States believe that restitution offers a way to hold a defendant directly accountable for the consequences of their actions. A victim does not need to ask for restitution. A judge must consider ordering restitution in a plea bargain or a post-conviction sentence, and they may need to state their reasoning if they decide not to order it.
Punitive vs. Compensatory
Punitive = punishment to the defendant Compensatory = compensation to the victim
Some types of crimes will result in mandatory restitution as part of the sentence. These may include drunk driving, domestic violence, sexual assault, child abuse, identity theft, and financial elder abuse. Restitution also is very common in theft crimes, white collar crimes, and other cases in which a victim suffered a direct financial loss. The defendant will be ordered to pay back the value of the money or property that they stole. In other situations, a judge may order restitution if it is necessary to compensate the victim and rehabilitate the defendant.
Setting the Amount of Restitution
A judge usually will consider the defendant’s ability to pay, both now and in the future, as well as the circumstances surrounding the offense, the losses of the victim, the financial benefit that the defendant gained from the crime, and the financial burdens faced by the victim and anyone else who was affected by the crime. Sometimes state law prevents a judge from setting a restitution amount based on the defendant’s current ability to pay. However, all states allow a judge to consider a defendant’s future ability to pay. If a defendant has few resources now but will have more resources in the future, the judge may set up an installment payment plan with increasing payments over time.
Did You Know?
A defendant can face separate monetary penalties in criminal and civil court for the same conduct.
In addition to criminal penalties, a defendant may face civil liability to the victim in a separate case. If this case results in a settlement for the amount of the victim’s losses, the judge in the criminal case may not order restitution or may reduce the restitution amount. This is to avoid issuing a double recovery to the victim. Since the criminal and civil court systems are separate, though, a settlement in the civil case does not require a judge in the criminal case to refrain from ordering restitution.
People Eligible to Receive Restitution
The most obvious recipient is anyone who suffered direct losses because of the crime. This could be an individual or an entity, or both. Often, the defendant will need to pay restitution to a government agency or another entity that has compensated the victim for their losses, such as an insurer or a victim compensation program. If there is no victim of a crime, restitution will not be ordered in most states. Some states still may require a defendant to pay restitution to government agencies to cover the costs of investigating the crime.
A defendant in a murder case may be ordered to pay restitution to the family members of the victim. This can overlap with the damages paid in any wrongful death case brought by the family members.
Expenses Covered by Restitution
The types of expenses covered in a restitution award often resemble damages in personal injury cases. For example, a defendant might need to pay restitution for a victim’s lost income resulting from injuries, and they might need to cover medical and therapy costs. In a murder case, the defendant might be ordered to pay the funeral expenses of the victim and pay for counseling for their family members. Any costs of replacing or repairing property may be included, in addition to any other out-of-pocket expenses. Similar to personal injury damages, restitution awards can cover anticipated future losses.
Restitution is Not a Fine
Fines are paid to the government that prosecuted the crime. Restitution is paid to the victim, an entity that compensated the victim, or a state restitution fund.