Beyond Jail: Fines and Restitution

In criminal sentencing, fines and restitution are often alternatives or additions to incarceration.

By , Attorney Santa Clara University School of Law
Updated 1/05/2023

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.

Criminal Fines

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 only a fine include fish and game violations, shoplifting, and traffic violations. 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. (Also, the Eighth Amendment to the U.S. Constitution bans excessive fines, limiting what the government can seize in forfeiture proceedings.)

Is Restitution the Same as a Fine?

Fines and restitution are often confused in the public's mind. They are not the same. The money from fines goes 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 to compensate the victim for the harm done due to the crime.

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 and Enforcement of Restitution Orders

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.

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