While we’ve all heard the saying “crime doesn’t pay,” adding up victims’ expenses proves that it definitely costs. In the criminal justice system, there are two main mechanisms for crime victims to obtain compensation for the costs caused by a criminal act: restitution and crime victim compensation statutes.
This article focuses on restitution. For information on the other mechanism for compensating victims, see Crime Victim Compensation.
What is Restitution?
Restitution involves the court, as part of a sentence in a criminal case, ordering a defendant to compensate the victim for losses suffered as a result of the crime. All states have laws providing that convicted defendants pay restitution to their victims. Public policy favors imposing restitution as part of a sentence to force the offender to answer directly for the consequences of the crime.
Courts are required to consider restitution as part of any sentence, including plea bargains, even when the victim doesn’t request it. When a judge doesn’t order restitution or orders only partial restitution, many states require that judge to provide a justification on the record.
When is Restitution Ordered?
Restitution is included as part of a sentence in a criminal case when:
- the court considers it necessary for rehabilitation
- it’s needed to make the victim "whole," and
- the victim’s financial losses are directly related to the defendant’s crime.
Restitution is almost always part of the sentence in theft or fraud cases; the court directs the defendant to pay back the amount stolen.
In addition, many states require mandatory restitution for certain offenses, such as crimes against the elderly, domestic violence, sexual assault, hate crimes, child abuse, child sexual abuse, drunk driving, and identity fraud.
Who is Eligible for Restitution?
Direct Victims. Generally, restitution is paid to the person who directly suffers injury or loss as a result of the defendant’s crime. In most states, especially in relation to financial crimes, the victim can be an individual, partnership, corporation, or any other association or entity.
Indirect victims. In a murder case, the surviving family members of the murder victim are eligible to receive restitution.
Third Parties. Many states authorize restitution to any entity that has provided recovery to the victim as a collateral source, such as victim compensation programs, government entities, and victim service agencies. If a victim is insured and has been reimbursed by the insurance company for damages from the criminal act, some states allow the court to order a defendant to pay restitution directly to the insurance company. A few states even allow restitution to creditors.
The Government. When there's no identifiable victim of a crime, the defendant cannot be ordered to pay restitution as part of his or her sentence. For example, a defendant convicted of possessing a fraudulent identification in the name of Ned Nobody can’t be ordered to pay restitution to Mr. Nobody if Mr. Nobody doesn’t exist. However, in some jurisdictions, the government and society at large would be considered the victim in these “victimless" crimes (especially drug offenses, prostitution, and welfare fraud), and defendants could be ordered to pay restitution to reimburse agencies for money expended to investigate the crime.
What Expenses Does Restitution Cover?
Restitution can be ordered to reimburse a victim for a variety of expenses related to a crime. While provisions vary from state to state, the following can typically be considered in calculating restitution amounts:
Funeral expenses. All expenses associated with the funeral and estate closing costs are usually considered appropriate for restitution in homicide cases.
Lost wages. If a victim missed work because of injuries from a criminal act or because of participation in the court process, the victim can ask to compensated for these lost wages. In some states, defendants can even be required to compensate victims for any vacation time or sick time used for recovery or court attendance. Victims who are self-employed stand to lose far more from not being able to work, so they can ask for restitution for lost profits.
Medical and counseling expenses. Medical expenses such as hospital costs, physical therapy, and rehabilitation care are generally included. Most states allow restitution to cover counseling expenses for victims, which can sometimes include counseling of victims’ family members in homicide cases. Some states allow the court to order restitution amounts in anticipation of long-term expenses that may not have fully materialized by the sentencing date.
Lost or damaged property. Courts can order restitution for the replacement or repair value of stolen property that cannot be returned and for the cost of any property damage. In the event that specialized cleanup is required (such as removal of biohazard waste from a homicide scene or meth house), these expenses can be included in restitution amounts.
Other direct out-of-pocket expenses. The court can order restitution for any other out-of-pocket expenses incurred directly because of the crime, such as increased insurance premiums in a burglary case or expenses for correcting a victim’s credit history in an identity theft case.
Considerations in Ordering Restitution
Courts must take certain legal elements into consideration in determining the amount of restitution ordered in a particular case. These include:
- losses suffered by the victim
- the seriousness and gravity of the offense and the circumstances of its commission
- the economic gain derived by the offender
- the financial burden placed on the victim, the government, and others injured as a result of the crime
- the current financial resources of the defendant, and
- the defendant’s future ability to pay.
Although some states require judges to order defendants to pay restitution regardless of their ability to pay, as a general rule, ability to pay is an element to be considered in determining the amount of restitution and the schedule of payments.
The court can always consider a defendant's future financial prospects in assessing restitution requirements. For example, if Tom Trustfund is currently penniless but set to come into a large windfall on his 30th birthday, a judge would likely order a schedule of increasing payments in restitution amounts in a sentence for financial fraud. Similarly, the court would likely order minimal restitution from Penny Pauper, who has no resources, no education, and no future prospects.
Private civil cases
The court can also consider any civil settlements in deciding whether to make a defendant pay restitution and what amount of restitution to order. In that situation, the court is likely to order less, if any, restitution to prevent the victim from receiving a windfall. However, as restitution is part and parcel of the criminal justice system, a civil settlement agreement cannot prevent the court from ordering restitution in a criminal case.