When a person commits a crime that involves financial loss to someone else they might be ordered to pay restitution. What is restitution? When does it occur? How is it calculated? What factors do judges consider when they order restitution?
What is restitution?
In criminal law restitution is a monetary penalty determined by a judge that a defendant must pay for the benefit of the victim of a crime. For example, a person who shoplifts from a store might be required to pay restitution to compensate the owner. In this case that might be $500, if that was the value of the stolen items.
When will a judge order restitution?
The purpose of restitution is to compensate the victim of a crime. Restitution can be ordered:
- As part of a criminal sentence, after an accused person makes a plea or is found guilty of a crime beyond a reasonable doubt
- As a condition of probation
What factors do judges consider when they order restitution?
Before a judge orders restitution as a condition of probation these three requirements must be met:
- First, the victim must have suffered economic loss related to the defendant’s criminal conduct
- Second, the award must not exceed the economic loss of the victim
- Third, the defendant must have the ability to pay the money or perform the services ordered. However, if a Defendant does not have the ability to pay the restitution they will not be ordered to do so. So, there is a balancing of factors that goes into that determination.
The burden is on the government to establish that these requirements are met. This means that if, for example, the government has not presented evidence that the defendant has the ability to pay the restitution, the judge is not allowed to order payment of that amount. Generally, if there is no agreement between the parties, there is a second hearing scheduled after the underlying criminal case was disposed.
Are there ways to challenge a restitution payment?
There are ways to challenge a restitution payment. When restitution as a condition of probation is ordered, your attorney could challenge any one of the three factors.
When restitution is ordered as part of a criminal sentence it will not be ordered until the court conducts a hearing. At this hearing or any time after your attorney can present evidence that paying restitution would pose an excessive financial hardship on the defendant or their family. If this does not totally eliminate the payment, it could convince a judge to reduce the amount owed or modify the time and method of payment.
However, keep in mind that sometimes paying restitution can be an effective negotiating tool. For most people, making a money payment is a better alternative to other types of criminal punishments, like serving time. In some cases, restitution might help to totally resolve the case. Your lawyer understands the importance of this and will help you negotiate with the district attorney to advance your best interests.
IF YOU OR A LOVED HAVE A QUESTION ABOUT RESTITUTION AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.
CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.