Court-Ordered Restitution: Victim Compensation Through The Criminal Justice System

In most states, criminal courts are empowered to order "restitution" payments after a criminal offender has been convicted. Forming one aspect of the offender's sentence, restitution awards go directly to the victims of crime, helping them pay for crime-related expenses that, in the absence of restitution, they would have to pay out-of-pocket.

Court-Ordered Restitution Payments

Restitution awards aren't the rule, however. Most jurisdictions leave restitution-related decisions up to the discretion of judges, which means that many victims will have to petition the court specifically and demand financial compensation.

Only a small subset of states make restitution awards mandatory, and even in those jurisdictions, restitution is only awarded in the case of violent felonies, the National Center for Victims of Crime reports. In most places, victims have to fight for a restitution award.

You should ask, repeatedly, for restitution if it's important to you. Tell the prosecutor in your case that you've been financially injured by the crime, in addition to your physical and emotional injuries. Make it clear that restitution is in order. Create a list of the financial expenses you've incurred due to the crime; make sure to include this list in your victim impact statement to submit to the court during sentencing.

What Expenses Can Restitution Cover?

Restitution is generally ordered to cover out-of-pocket expenses caused by the crime, including medical care and lost wages. All expenses incurred due to the crime must be substantiated through supporting documentation, submitted for the court's consideration during the sentencing process.

Out-Of-Pocket Expenses Due To The Crime

Restitution isn't intended to reimburse victims for their pain and suffering, so-called "non-economic" or "general" damages that are only available in the form of a civil lawsuit. In considering restitution awards, courts can only consider forms of damage that are easy to prove, using evidence of crime-related losses like medical bills and damaged property. In most cases, judges will consider expenses like:

• Medical bills
• Doctor's appointments
• Prescription drugs
• Mental health counseling
• Lost wages
• Travel to-and-from criminal justice proceedings, along with child care, if applicable
• Lost or damaged personal property
• Insurance co-pays and deductibles
• Crime scene clean-up

The goal behind restitution is to make the victim "whole" again, insofar as that is possible through financial compensation alone, returning the victim to the position they occupied prior to the crime. Obviously, that's not possible in fact, but restitution, at the least, can help victims cover most expenses that are directly-related to the crime.

No Pain & Suffering Compensation

Pain and suffering damages, which hope to compensate victims for the sheer physical experience of pain and trauma, is a notable exception. Since the experience of physical pain and emotional trauma can't be proven objectively, criminal courts don't consider them at all. Civil courts, on the other hand, consider pain and suffering losses every day, providing victims with a wider range of damages.

Conviction Is Required

The major problem with restitution is that the suspect must be convicted of the crime. Restitution can only be ordered during the sentencing process and, needless to say, a conviction is required for sentencing. But most crimes never lead to conviction, either because the victim is unwilling to step forward, the prosecutors aren't interested in pursuing the case or no suspect can be identified in the first place.

Victim Assistance Funds

For the victims of these un-prosecuted crimes, restitution just isn't available. That's why state victim compensation programs are so powerful. Every state operates its own fund that offers financial reimbursement to victims of crime, with or without an offender's conviction. The programs are financed through fines and fees assessed against convicted criminal offenders, along with federal grants.

There are, of course, requirements to take advantage of these funds. In many states, the victims' assistance fund is limited to victims of violent crime who suffered physical or emotional injuries. The surviving family members of a homicide victim are also generally eligible to apply.

The vast majority of states have time limits to keep in mind, both for reporting the crime (always a requirement for compensation) and filing your application for reimbursement. Most states also respect "good cause" exceptions to these deadlines, especially for sexual assault victims and child victims.

Overlapping Damage Awards

Court-ordered restitution and compensation secured through a state-based victims' assistance program can't overlap. If you secure restitution for your medical expenses, for example, your compensation award will be reduced by the amount already paid through restitution.

The same is usually true for civil lawsuit judgments. In most states, you can't double dip, securing compensation for the same damages through both restitution and a civil judgment.

Restitution pays for a wider range of damages than a state compensation program would. Most state assistance funds, for example, don't cover property damage and property loss. Restitution often does. The other big difference, beyond the requirement of conviction, is that restitution can be ordered in any criminal case; it's not limited solely to violent crimes, like most state compensation programs.

How Do Victims Collect Restitution Awards?

In awarded restitution, courts don't just consider a victim's damages - they usually look at the offender's ability to pay, too. If you secure restitution, you're not being paid by the court or through taxpayer dollars. You're being paid by the offender, so the amount of money you actually collect is largely dependent on the offender's resources.

This is the second big problem with restitution. Many, if not most, criminal offenders just don't have the cash to adequately compensate their victims. As a result, many states will reduce the amount of a claimed restitution award if the offender doesn't have the money to pay it, or any assets to liquidate. In other states, offenders are ordered to pay the full restitution amount, without any regard to their ability to pay.

Court-Structured Payment Plans

Courts often get involved in the details of payment. It's not uncommon for courts (or probation officers) to establish a payment schedule that the offender has to comply with. Another option is to garnish the offender's wages (including wages earned during incarceration) and redirect them to the victim. Some states go even further, taking money from the offender's tax returns.

Restitution can also be made a condition of parole or probation. In some states, offenders who fail to fulfill their payment obligations will have their parole or probation periods extended, conditional on paying the full amount. As we can see, courts have a variety of mechanisms at their disposal to motivate, or force, convicted offenders into complying with their restitution obligations.

The Private Right To Collect

Even so, many victims never see the money they were awarded. That's why most states allow victims to enforce restitution orders through civil courts, on their own behalf, rather than waiting for the criminal justice system to take interest in securing the money.

Civil lawsuits can be a powerful remedy for victims who have yet to receive their complete restitution award. For one thing, the "burden of proof" in a civil lawsuit (referred to as a "preponderance of the evidence") is far lower than the one used in criminal cases ("beyond a reasonable doubt)."

And, in the event that the plaintiff wins their case, court awards can be far sharper than restitution orders. If the offender comes into money somehow (by selling a house or getting a new job), the civil court can order them to pay the plaintiff out of those new funds.

Additional Resources

• Crime victim compensation funds
• Victim lawsuit statutes of limitations
• Homicide and manslaughter claims