Judges may have many choices when it comes to sentencing a convicted defendant. Incarceration is but one of them; usually, fines, restitution, community service, and other options are available.
Fines are a common punishment for a variety of crimes, especially less-serious offenses committed by first-time offenders. Offenses that are typically punished by a fine include minor drug possession (of a small amount of marijuana, for example), fish and game violations, shoplifting, traffic violations, and even some first-time drunk driving cases. For more serious offenses or when the defendant has a criminal record, many judges combine a fine with other punishments, such as incarceration, community service, and probation. In many parts of the country, laws specify the maximum amount an offender may be fined for a particular offense. The judge is then free to impose a fine up to but not exceeding that amount.
Some drug possession offenses come with a "stamp tax," an archane but still lively way that the government punishes the possession and sale of illegal drugs. In a non-criminal context, the tax is imposed on certain types of transactions (like the transfer of real estate). An actual stamp must be bought and attached either to the item sold or to a legal writing that documents the transaction (like a deed). The federal government imposes stamp taxes on legal activities such as deeds, the issue and transfer of stocks and bonds, and on playing cards.
The tax must be paid according to the amount of the drug involved, and is often seen in marijuana sale offenses. A typical stamp tax for marijuana sales is the one imposed by the state of Louisiana: $200 for each gram or portion of a gram. (La. Rev. Stat. § 2601.)
To read more about stamp taxes for marijuana possession in each state, see Marijuana Laws: Crimes & Penalties
Fines and restitution are often confused in the public's mind. They are not the same.
Fines go to the state (or federal or local government prosecuting the crime). Restitution is money the defendant pays to the victim or to a state restitution fund. In some cases, the “victim” is society, such as in welfare and Medicare fraud schemes, in which case defendants may be sentenced to pay the state back the money that was fraudulently taken. More typically, in both state and federal jurisdictions, offenders may be required to return or replace stolen or damaged property, to compensate victims for physical injuries and medical and psychological treatment costs, or to pay funeral and other costs if the victim dies.
Typically, the defendant will be ordered to pay restitution as just one part of the sentence, in addition to a fine, prison time, community service, probation, and/or some other punishment. Sometimes, plea bargains are struck by which criminal charges are dropped altogether if the defendant admits guilt and completely compensates the victim for stolen property or a vandalized car. This type of arrangement is called a “civil compromise.”
For more about plea bargains and how they work, see Plea Bargains.
Limits on Restitution
In most states, restitution orders are limited to the victim’s out-of-pocket economic losses, such as medical expenses and lost pay for missing work. With few exceptions—such as when a child has been sexually assaulted by the defendant—a judge cannot order a defendant to compensate a victim for noneconomic damages such as pain and suffering and emotional distress. Victims who want compensation for noneconomic losses have to sue the defendant in a separate civil action.
Courts typically enforce their restitution orders in two ways:
As a condition of probation. If probation is granted, the defendant is required to pay the restitution as a condition of remaining on probation. If the supervising probation officer believes that the defendant is willfully avoiding paying the restitution, the officer can seek to have the probation revoked and the defendant incarcerated.
Attaching bank accounts and garnishing wages. The restitution order is considered to be the equivalent of a civil judgment and can be enforced by the victim by attaching or garnishing a defendant’s assets or wages. However, under this method of enforcing the restitution order, the defendant can’t be put in jail for not paying up.
Recognizing that many criminal defendants may never be in a position to pay full restitution, a number of states also have set up restitution funds to help compensate victims who cannot collect from the defendant.
For example, following the 1999 shooting at a Granada Hills, California, Jewish day care center, the city attorney’s Victim of Crime Program initiated an outreach effort. The L.A. Times reported that victims who were shot may receive up to $46,000 from a state restitution fund to help pay their medical bills, and victims (and their families) who were present during the incident may be eligible for up to $10,000 for psychological counseling.
This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.