Status of the Law

Right to Restitution

Every state gives courts the statutory authority to order restitution. In addition, 18 of the 32 state crime victims’ rights constitutional amendments give victims a right to restitution.⁴

In more than one-third of all states, courts are required by statute to order restitution unless there are compelling or extraordinary circumstances. Florida’s law is typical, providing that “[i]n addition to any punishment, the court shall order the defendant to make restitution to the victim for: 1) Damage or loss caused directly or indirectly by the defendant’s offense; and 2) Damage or loss related to the defendant’s criminal episode, unless it finds clear and compelling reasons not to order such restitution.”⁵ In many states, the law requires restitution but allows broad exceptions to that rule. For instance, Connecticut and Nevada both require restitution “if restitution is appropriate.”⁶ Oregon provides that restitution shall be ordered “whenever possible.”⁷ Regardless of whether restitution is mandatory, about one-quarter of all states require courts to state on the record the reasons for failing to order restitution or for ordering only partial restitution.⁸ This requirement is thought to further encourage courts to consider restitution to the victim when sentencing convicted offenders.

Where victims have a clear statutory right to restitution, the right has been found to apply to cases that result in a plea agreement. The California Court of Appeals recently ruled that restitution must be a part of every sentence, regardless of a plea agreement to the contrary: “The Legislature left no discretion or authority with the trial court or the prosecution to bargain away the victim’s constitutional and statutory right to restitution. As such, it cannot properly be the subject of plea negotiations.”⁹ Oklahoma’s statute expressly requires that restitution to the victim be part of every plea agreement.¹⁰ Florida requires that an “order of restitution entered as part of a plea agreement is as definitive and binding as any other order of restitution, and a statement to such effect must be made part of the plea agreement.”¹¹

Although most restitution laws apply to crime victims in general, many states have enacted specific directives to order restitution to victims of particular offenses, such as crimes against the elderly,¹² domestic violence,¹³ sexual assault,¹⁴ hate crimes,¹⁵ child abuse,¹⁶ child sexual abuse,¹⁷ drunk driving,¹⁸ and identity fraud.¹⁹

Eligibility for Restitution

Generally, restitution laws provide for restitution to the direct victim(s) of a crime, including surviving family members of homicide victims. Many states also authorize an order of restitution to third parties, including insurers,²⁰ victim compensation programs,²¹ government entities,²² and victim service agencies.²³ Several states authorize restitution to any entity that has provided recovery to the victim as a collateral source.²⁴ Alaska authorizes a court to order restitution “to a public, private, or private nonprofit organization that has provided . . . counseling, medical, or shelter services to the victim or other person injured by the offense.”²⁵ In a recent New York case, an appellate court ruled that a defendant could be required to make restitution to a victim’s employer for the victim’s sick leave.²⁶

Restitution need not be limited to victims of crimes for which a defendant was convicted. When a defendant is charged with similar crimes against many individuals, as in the case of a serial rapist or a perpetrator of large-scale fraud, he or she may plead guilty to one or more counts in exchange for an agreement by the prosecutor to drop other charges. In such a case, as part of the plea agreement, the defendant may agree to pay restitution to all victims. Many states specifically allow this by statute.²⁷ For example, Idaho’s restitution law states that the “court may, with the consent of the parties, order restitution to victims, and/or any other person or entity, for economic loss or injury for crimes which are not adjudicated or are not before the court.”²⁸

Losses for Which Restitution May Be Ordered

Restitution may be ordered to cover numerous crime-related expenses incurred by a victim. Typically, statutes specify that the following may be included in setting the restitution amount:

• Medical expenses.
• Lost wages.
• Counseling expenses.
• Lost or damaged property.
• Funeral expenses.
• Other direct out-of-pocket expenses.

Medical expenses are defined as medical services and devices (often including “nonmedical care and treatment rendered in accordance with a recognized method of healing”), physical therapy, and rehabilitation.²⁹

Lost wages can include time lost from work because of participation in the court process.³⁰ Courts have even applied this to self-employed individuals who have had to close a business or forego employment while testifying.³¹ California law specifies that parents can receive restitution for wages lost while caring for an injured minor victim.³² Although Arizona’s statute is not so specific, its Court of Appeals has interpreted that statute to reach the same conclusion: the “parents . . . stood in the shoes of the victim and were entitled to restitution for their lost wages incurred while taking [her] to medical appointments and juvenile court hearings on this case.”³³

Counseling expenses are generally recoverable. Many states extend restitution for counseling expenses to victims’ family members. Some states limit family counseling expenses to cases of homicide,³⁴ whereas others allow such expenses whenever the counseling is related to the commission of the offense.³⁵

In homicide cases, a family’s funeral and travel expenses and the ordinary and reasonable attorney fees incurred in closing the victim’s estate have been found to be proper restitution items.³⁶ Other funeral expenses that might be covered include a headstone, flowers, chapel music, minister’s honorarium, and chapel fee.³⁷

Restitution may also be ordered for other out-of-pocket expenses directly related to the crime. In cases of identity fraud, this may include expenses for correcting a victim’s credit history and costs incurred in any civil or administrative proceeding needed to satisfy any debt or other obligation of the victim, including lost wages and attorney fees.³⁸

Many states authorize courts to order defendants to pay interest on the restitution. For example, California’s law provides that a restitution order shall include “interest, at the rate of 10 percent per annum, that accrues as of the date of sentencing or loss, as determined by the court.”³⁹ In some states, attorney fees are also recoverable. In Oregon, attorney fees have been found by the courts to be recoverable as “special damages” if incurred to ensure indictment and criminal prosecution; the victim may later file a civil suit.⁴⁰ California’s restitution statute provides for recovery of attorney fees and costs incurred for collecting restitution.⁴¹

In some states, future damages can be awarded. Iowa law specifically provides for future damages, stating that where the full extent of the loss is not known at the time of sentencing, the court is to issue a temporary order for a reasonable amount of restitution identified at that time. The court is authorized to issue a permanent supplemental order at a later date, setting out the full amount of restitution.⁴² Arizona’s Court of Appeals ruled that future damages were a permissible restitution element, reasoning that disallowing future expenses would defeat the legislative purpose of restitution, which is to make the victim whole.⁴³

Meanwhile, Wyoming has a detailed statutory scheme for ordering restitution for long-term medical expenses. Under its law, the court is to consider and include as a special finding “each victim’s reasonably foreseeable actual pecuniary damage that will result in the future as a result of the defendant’s criminal activity.”⁴⁴ Thus, a restitution order for long-term physical health care must be entered for any such damages.

Not every state allows restitution for future expenses, however. Indiana courts have stated that only actual costs incurred by the victim before sentencing may be considered for a restitution order.⁴⁵

Considerations in Ordering Restitution

Restitution laws generally set out the elements the court is to consider before it rules on restitution. Alaska law provides that “[i]n determining the amount and method of payment of restitution, the court shall take into account the: 1) public policy that favors requiring criminals to compensate for damages and injury to their victims; and 2) financial burden placed on the victim and those who provide services to the victim and other persons injured by the offense as a result of the criminal conduct of the defendant.”⁴⁶

Most states also require the court to consider the current financial resources of the defendant, the defendant’s future ability to pay, and, in some states, the burden restitution will place on the defendant and his or her dependents. States are beginning to move away from consideration of the defendant’s ability to pay when setting the restitution amount. However, the defendant’s assets and earning potential are taken into account in setting the payment schedule. Arizona’s law states that the court “shall not consider the economic circumstances of the defendant in determining the amount of restitution,”⁴⁷ but the court is required to consider the economic circumstances of the defendant in specifying the manner of payment.⁴⁸ Similarly, in Florida, the court is charged only with considering the loss sustained by the victim in determining whether to order restitution and the amount of restitution. At the time the restitution order is enforced, the court is to consider the defendant’s financial resources, the present and potential future financial needs and earning ability of the defendant and his or her dependents, and other appropriate factors.⁴⁹