What is restitution?
Restitution refers to money that is ordered by a court to be paid to a victim by the defendant as repayment for losses and damages suffered by the victim due to the defendant’s criminal conduct. Restitution is a key component of many criminal sentences in California.
The purpose of restitution is to make the victim “whole again” by compensating them for any losses incurred as a result of the crime. Common losses covered by restitution include medical expenses, lost income, property damage or loss, and funeral/burial costs.
Restitution is not the same as a civil judgment for damages. It is ordered as part of the criminal sentence and is collected by the probation department or other entity as ordered by the court. Failing to pay restitution as ordered can result in serious consequences for the defendant, including being held in contempt of court, wage garnishments, property liens, and extended probation.
How is the amount of restitution determined?
The amount of restitution is determined during the sentencing phase of a criminal case. The prosecution will typically submit information and documentation regarding the victim’s losses, such as medical bills, repair estimates, and lost income calculations.
The defense attorney may argue against the requested amount of restitution if they believe it is excessive or unsupported. Ultimately, the judge will review the evidence and arguments presented and decide on the appropriate amount. Factors considered include:
– Documented expenses and losses resulting directly from the defendant’s criminal conduct.
– The amount of loss claimed by the victim.
– The defendant’s ability to pay. Restitution amounts cannot be so high that the defendant has no reasonable ability to pay it.
– Whether the victim has received or is entitled to receive compensation from other sources like insurance that would offset the restitution amount.
In making the decision, the judge must use a preponderance of the evidence standard in assessing whether the claimed losses are more likely than not a direct result of the defendant’s criminal behavior.
What are the time limits for paying restitution?
Restitution payment time periods are determined by the court and spelled out in the criminal sentence. Typical time periods include:
– Full restitution immediately, usually for minor offenses where small amounts are owed.
– Monthly installment payments over a set period of time, such as 5 years on felony offenses.
– Lump sum payment by a specific date, for instance 50% paid within 60 days and the remaining balance within 120 days.
– Contingent restitution, where the defendant must pay restitution in an amount to be determined within a set time period as the victim’s losses become clear.
Restitution orders from California courts remain enforceable for 10 years from the end of the probation period or release from custody. Victims can continue to take actions to collect on the unpaid restitution even after the probationary period technically ends.
What happens if I don’t pay the restitution as ordered?
There are significant consequences for failing to pay restitution as ordered by the court. These include:
– Probation violation: Not paying restitution is considered a violation of probation conditions. This could result in extended probation time, contempt of court charges, or even jail time in some cases.
– Civil collections: The court can refer the unpaid restitution to the California Franchise Tax Board or a private collection agency. They will then attempt to collect on the debt through wage garnishments, bank account levies, property liens, and other civil actions.
– Extended payment period: The court may modify the sentence to extend the restitution payment timeframe if a violation occurs. This serves to provide additional time for the amount to be paid in full.
– Interest charges: Interest of 10% per year may be added onto the unpaid amount. This is meant to compensate for the lost use of funds by the victim.
– Driver’s license holds: For felony offenses, the DMV can suspend a defendant’s driver’s license if restitution is not paid. They will not be able to get a license until it is taken care of.
– Other impacts: Unpaid restitution can hurt credit ratings and future employment prospects as well. Some defendants may end up declaring bankruptcy due to the debt.
Are there any ways to get the restitution order reduced or waived?
There are a few options available for trying to get restitution orders lowered or waived, typically by making some form of post-sentencing petition back to the court:
– Inability to pay petition: If there is a material change in circumstances that makes you unable to fulfill the restitution obligation, you can petition the court to lower payments. However, you will need strong evidence of inability to pay.
– Bankruptcy filing: Declaring bankruptcy can eliminate or discharge unpaid restitution. However, victims can object to this in court during bankruptcy proceedings if they want the obligation to survive.
– Restitution hearing: Request a new restitution hearing based on new evidence or errors made in ordering the original amount. The burden is on you to produce evidence justifying a lower amount.
– Sentence modification: File a petition to modify the sentence if the restitution order appears improper or excessive. This is rare, but occasionally granted if the request is reasonable.
– Direct victim negotiation: Work directly with the victim to try negotiating a settlement for a lower amount that will satisfy the restitution order. Get any agreement approved by the court.
– Civil settlement: In some cases, reaching a settlement in a separate civil lawsuit started by the victim against the defendant can offset or fulfill the restitution required.
However, courts are not obligated to reduce or waive restitution except in extreme cases where evidence clearly shows inability to pay through no fault of the defendant. Do not count on getting restitution lowered without concrete proof.
What should I do if I am having trouble making restitution payments?
If you are struggling to keep up with court ordered restitution payments, it is imperative to take proactive steps right away:
– Contact probation officer: Let your probation officer know about difficulties meeting the payment schedule. They may be able to modify probation terms or divert payments temporarily.
– Request a hearing: Petition the court for a new restitution hearing to explain your financial situation and request a modified payment plan.
– Provide updated financial information: Supply the court with evidence like pay stubs, bank statements, and bills to back up claims of economic hardship.
– Get a public defender: Request assistance from a public defender to help represent you during the hearing process if you cannot afford private counsel.
– Propose a new payment schedule: Develop a revised payment plan proposal with smaller installment amounts stretched over a longer period for the court to consider.
– Explore assistance programs: Research social service agencies and nonprofit organizations that may be able to provide temporary financial assistance.
– Find additional income sources: Take on part-time work or sell assets that could generate funds dedicated specifically to restitution payments.
– Stay in communication: Continuously update the court and probation department on your situation, efforts to find money, and proposal for a modified approach.
Document everything and be polite yet assertive. If the court sees you are making a good faith effort to pay despite difficulties, they may be willing to work with you on a better restitution payment solution.
What can happen if my financial situation improves after sentencing?
If your financial situation significantly improves after your restitution order and payment plan was set, the court may make adjustments to get more money to the victim by:
– Increasing monthly payment amount: If income increases, the court can order higher installment payments.
– Ordering lump sum payment: Upon receiving funds like an inheritance or insurance settlement, you may need to pay all or a portion immediately.
– Extending payment duration: The court may extend the payment period rather than increase monthly payments.
– Ordering wage garnishment: A portion of wages can be taken by the court to satisfy restitution debt.
– Imposing liens: Liens may be placed on properties you own until restitution is paid. The property could be seized and sold.
– Revoking probation: If you still are on probation, failing to inform probation officers of financial improvements may be considered deception and violation of probation.
So if you see a major improvement in income or assets, proactively notify the court to show you are acting in good faith. Do not wait for the court to find out on their own. Ask for guidance on how increased payments should be handled fairly.
Can my restitution payments be waived if I provide community service instead?
Restitution is considered an integral part of making the victim whole, so providing community service instead of payment is rarely permitted by itself. However, in limited scenarios community service can be used to fulfill part of restitution obligations:
– As an agreed upon compromise between the defendant and victim where the victim agrees to waive part of restitution owed in exchange for community service performed at a level commensurate with the amount being waived. The court must approve this arrangement.
– For indigent defendants who prove completely inability to pay restitution through no fault of their own, community service may be ordered by the court instead of payments, provided the victim does not object.
– Community service in addition to payments may allow the court to reduce monthly payment amounts to a more manageable level for low-income defendants based on the value of the service being provided.
– In juvenile cases, judges have greater discretion to order community service as an alternative to restitution payments depending on the circumstances.
Unless mandated directly by the court, however, any community service is unlikely to nullify outstanding restitution payments entirely. At most they can be used as partial credit to lower amounts owed if the victim agrees and the arrangements are approved by the court overseeing the sentence.
Can I go back to the court for recalculation of restitution owed years later?
In most cases, restitution orders from California criminal courts are not able to be disputed or recalculated years later after substantial payments have been made. Some key reasons why challenging a restitution judgment long after the fact is difficult include:
– Restitution orders made by criminal courts are final judgments that set an amount owed to the victim. They typically cannot be disputed or appealed years later outside a short window after sentencing.
– Victims have a right to receipt of court ordered restitution, so overturning an order after the victim has been receiving payments requires significant proof of miscarriage of justice.
– You were required to contest the restitution amount at the time of sentencing if you disagreed with the calculation. Failing to do so makes it very hard to challenge later.
– If you have already been willingly making payments, this implies acceptance and approval of the amount owed. Judges will not look favorably on trying to disrupt settled cases.
– Time limitations exist on how long you have after sentencing to request the court to review, reconsider, or modify the restitution judgment before it becomes permanent.
The only potential avenue for recalculation so long after the fact is proving the sentencing court lacked jurisdiction to order restitution or violated due process rights in doing so. But the evidentiary bar is extremely high in these types of cases. Consult an attorney experienced in this area of law before pursuing such action.
Can my wages be garnished if I am already making some payments?
Yes, wage garnishment is possible even if you have already been consistently making restitution payments if:
– The court determines you have the ability to pay more based on income.
– You fall far enough behind on payments that the court believes your employment income should be tapped.
– The restitution order is nearing expiration and still has a substantial balance.
– You inaccurately represented your financial situation initially.
– A victim requests the court to order garnishment to speed receipt of money owed.
– You receive employment income from new or additional jobs not disclosed to the court previously.
Wage garnishment is meant to help satisfy the debt, not to overly penalize or financially ruin responsible payers. But courts also have a duty to ensure victims receive compensation in a reasonably efficient manner. If your economic situation has improved or you are behind on payments the court thinks should have been satisfied by now, garnishment through an earnings withholding order may be imposed despite existing payments.
Can I deduct restitution payments from my taxes?
No, restitution payments ordered by a court as part of a criminal sentence cannot be deducted on your taxes. The IRS does not allow deductions for fines or penalties paid to a government for violation of any law. And court ordered restitution payments are considered such non-deductible fines or penalties.
If voluntary restitution was paid outside of court order in conjunction with a settlement between the harmed party and the defendant, it may potentially be tax deductible as a business expense. But formal court mandated restitution arising from criminal prosecution specifically disallows any tax deductions for money paid.
Conclusion
Restitution is often a key component of sentences for criminal offenses in California designed to make victims financially whole. While restitution orders can be burdensome, they are legally required and enforced by the court. If struggling to make payments, promptly seek assistance from probation officers, request hearings for modified payment plans, and diligently document inability to pay if it exists. In some cases community service may partially offset restitution, but rarely eliminates amounts owed completely. Failure to make a good faith effort at paying restitution as ordered can result in serious consequences from probation violations to extended payment periods to wage garnishment in many instances. Work earnestly to avoid these outcomes by communicating with the court about any financial difficulties meeting your obligation.
