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Laying the Groundwork for Collecting Restitution

Courts can take many steps well before collection efforts begin that may make enforcing restitution orders much easier. The sentencing court can lay the groundwork for collecting restitution by thoroughly investigating the assets of convicted offenders, preserving those assets, and routinely entering income deduction orders.

Investigating the Assets of Convicted Offenders

Many states have attempted to improve the collection of restitution by providing for a thorough investigation of the assets of convicted offenders, either before or after restitution is ordered. (Statutory approaches to such investigations are addressed in Ordering Restitution to the Crime Victim, the sixth bulletin in this Legal Series.) A complete investigation of a defendant’s assets can help the court craft a workable payment plan, which should decrease the likelihood of default. If the defendant later defaults on any payments, the court can use this information to help determine whether the failure to pay restitution is willful.

A list of a defendant’s assets also can assist the victim or other entities in their collection efforts. In California, a victim is entitled to see a defendant’s disclosures identifying all assets, income, and liabilities or certain other documents concerning financial information.2 Until all restitution is paid, Kansas gives a crime victim the right to any information regarding the offender’s financial assets, income, or employment that is in the possession of the district court, parole board, or any community correctional service program.3

Preserving the Assets of Convicted Offenders

In some cases, defendants may conceal assets or may even waste assets in an attempt to avoid paying restitution. Pennsylvania allows the prosecutor to seek a restraining order or injunction when the criminal complaint is filed or the offender is indicted to preserve assets that may be used later to pay restitution. Before entering such an order, the court must hold a hearing to find a substantial probability that the commonwealth will prevail in the action, the restitution order will exceed $10,000, the property to be preserved appears necessary to satisfy any restitution order, and the failure to enter the restraining order or injunction will result in the property being made unavailable.4 Under certain circumstances, a temporary emergency restraining order can be issued “without notice or opportunity for a hearing, whether or not a complaint, information, indictment[,] or petition alleging delinquency has been filed.”5

California takes another approach. By state law, it is a separate offense to dispose of property to avoid paying restitution;6 the offense is usually a misdemeanor but may be a felony.

Entering Income Deduction Orders

The routine entry of income deduction orders—or garnishment orders—can streamline the process of collecting restitution. California and Florida both provide for automatic entry of an income deduction order at the time restitution is ordered. In California, this order is enforceable only when a defendant defaults on restitution payments, but in Florida, the order is effective immediately.7

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Restitution: Making It Work, Legal Series Bulletin #5
November 2002
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