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Criminal Restitution

The order, entered at sentencing, requiring a defendant to repay the victim's losses caused by the offence - what losses it covers, how it differs from a fine and from a civil judgment, the payment schedule and enforcement, and why it survives bankruptcy and the end of the sentence.

Informational only - this is not legal advice. These definitions explain general legal vocabulary in plain English. They are not advice about your situation, reading them creates no attorney-client relationship, and the law differs from state to state and changes over time. For advice you can rely on, speak to a lawyer licensed in your state.

What it means

Restitution is a sentence, not a debt in the ordinary sense: an order that the defendant pay the victim of the offence for the losses it caused. In the federal system and most states it is mandatory for crimes with an identifiable victim who suffered a pecuniary loss, and the court must order it regardless of the defendant's ability to pay, considering that ability only in setting the payment schedule. It covers the direct losses the statute lists - the value of property taken or damaged, medical and counselling expenses, lost income, funeral costs, and in many jurisdictions the costs of participating in the investigation and prosecution - and it is limited to losses caused by the conduct of conviction; losses from dismissed counts or uncharged conduct are included only where the defendant agrees in the plea, and consequential losses such as emotional distress or diminished credit are generally excluded. It is separate from a fine, which is paid to the state, and from forfeiture, which takes the proceeds of the crime.

The amount is decided at sentencing on the prosecution's presentation and the presentence report, by a preponderance of the evidence, with the defendant entitled to contest the figures; where the loss cannot be determined by sentencing, the court may set a later hearing. The order names the victim and the amount, and where several defendants caused one loss the court may make them jointly and severally liable or apportion it. Payment is usually ordered in instalments as a condition of probation or supervised release, through the clerk of court, and an unexplained failure to pay by a defendant who can is a violation that may lead to revocation - though a defendant who genuinely cannot pay may not be imprisoned for that reason alone.

A restitution order is enforceable as a civil judgment, with the lien, garnishment and levy remedies that implies, for a period long after the sentence ends; federal orders create a lien on all of the defendant's property. It is not discharged in bankruptcy under either consumer chapter, and it is not extinguished by the completion of the sentence or by an expungement in most states. The victim may also sue civilly for the same loss, with any restitution paid credited against the judgment, and a defendant's conviction is generally conclusive of liability in that suit.

Where this comes from

Federal restitution is the Mandatory Victims Restitution Act, 18 U.S.C. § 3663A (mandatory for listed offences), § 3663 (discretionary), § 3664 (procedure, including the preponderance standard and the schedule), § 3613 (enforcement as a lien and the enforcement period) and § 3572; Hughey v. United States, 495 U.S. 411 (1990), and Paroline v. United States, 572 U.S. 434 (2014), address causation, and Lagos v. United States, 584 U.S. 577 (2018), the scope of "investigation" costs. Non-dischargeability in bankruptcy is 11 U.S.C. § 523(a)(7) as construed in Kelly v. Robinson, 479 U.S. 36 (1986), and § 1328(a)(3). Imprisonment for genuine inability to pay is barred by Bearden v. Georgia, 461 U.S. 660 (1983). State restitution statutes and victims'-rights amendments set their own scope and enforcement rules and are not stated here.

When people hire a lawyer for this

Restitution is decided at the hearing where the defence is usually thinking about custody, and it is frequently the longest-lasting consequence of the case: a lawyer should demand the loss documentation, contest amounts that were not caused by the conduct of conviction, resist a plea term that stipulates to losses from dismissed counts, and ask for a schedule the defendant can actually keep. A defendant who has completed the sentence and still owes restitution should get advice before assuming it has lapsed, because in most systems it has not.

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Part of the LawyerLand plain-English legal glossary. Definitions are written from primary sources - statutes and court rules - and each entry states the authority it rests on, or says plainly when the doctrine is state law with no national rule.

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