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Enforcing Restitution Orders

States have enacted various provisions to enforce the collection of restitution orders when a defendant defaults in payment. These provisions are described below.

Improved Monitoring of Restitution Payments

A first step in any effort to improve the collection of restitution must be a system for monitoring a defendant’s compliance with the restitution order. Wisconsin requires its Department of Justice to establish a separate account for each person in custody or under supervision who has been ordered to make restitution. The court is to order a 5 percent surcharge to support the administrative expenses that result from such a system.8 In New Jersey, the Victims of Crime Compensation Board is charged with developing a system to track and dispense restitution and other offender payments,9 financed by a $3 offender assessment deposited into the Criminal Disposition and Revenue Collection Fund.10

In Michigan, the probation or parole officer is required to review, twice a year, every case in which restitution was ordered to ensure that payments are being made as ordered.11 The officer must also perform a final review at least 60 days before the expiration of an offender’s probation or parole. If an offender is not paying restitution, the officer must file a written report with the court. Similarly, in Utah, the Corrections Department is responsible for collecting restitution and must file a violation report with the court if a defendant fails to pay.12

Accurate information regarding payment must be shared between agencies that play a role in collecting restitution. In Iowa, for example, if probation is revoked for failure to pay restitution, the probation department is to forward the restitution plan, payment balance, and other pertinent information to the corrections department.13 In Massachusetts, when an offender is ordered to pay restitution to a victim, “the victim has the right to receive . . . a copy of the schedule of restitution payments and the name and telephone number of the probation officer . . . responsible for supervising the defendant’s payments.”14

Single System for Collecting Restitution and Other Court-Ordered Payments

Some states have attempted to improve the collection of restitution and other court-ordered payments—such as court fees—through a single system. Washington was an early leader in this area, devising a system for collecting an offender’s legal financial obligation that combines into one debt the restitution, statutorily imposed crime victim compensation fees, court costs, court-appointed attorney fees, and other costs assessed by the court against an offender.15 When moneys are collected from the offender for the legal financial obligation, restitution is to be paid first.16 Other states, including Alabama and New Jersey, also address collecting such costs through a single entity.17

Attachment of State Payments to the Defendant

Some states allow by statute various state payments, which ordinarily would first go to the defendant, to be used to satisfy restitution orders. For example, Maryland and Wisconsin laws allow a defendant’s lottery prize to be used to pay restitution.18 Iowa requires that any witness fees paid to an inmate be applied toward restitution.19 In Tennessee, 15 percent of the amount raised by the sale of inmate arts and crafts must be applied to restitution.20 Several states provide that whenever a prisoner is awarded damages in a civil suit, the award must be used to pay restitution.21

In Montana, any time a prisoner accumulates more than $200 in his or her prison inmate trust account, the excess is forfeited and used to pay any outstanding restitution.22 Similarly, Iowa law requires its director of corrections to deduct restitution payments, according to the inmate’s restitution plan, from the inmate’s account, which consists of money received by the inmate from any source.23

In some states, a defendant’s bond may be used to satisfy a restitution order.24 Under an Illinois appellate court ruling, courts may order that bond proceeds be applied to restitution even when someone other than the defendant provided the money.25

Wages From Prison Work Programs

By law, many prison work programs must direct a portion of the offender’s wages to the payment of restitution.26 Some statutes apply only to programs within the prison,27 others to programs run by private industry using prison labor,28 and still others to work-release programs.29 Because California law requires a deduction from prison wages for the payment of restitution, a California appellate court has ruled that trial courts may presume the payment of restitution from prison wages unless evidence shows that a defendant would be ineligible.30

Often, statutes prioritize how an inmate’s work program wages should be allocated to pay any restitution and other payments an inmate is required to make. For example, Louisiana law provides that wages from its prison industries program will be paid in the following order: (1) federal and state taxes and Social Security deductions, (2) 30 percent of the remainder after tax and Social Security deductions to the victims of crimes committed by the offender to the extent of their loss and thereafter to any state compensation fund, (3) 20 percent of the remainder after tax and Social Security deductions to the Department of Corrections, and (4) 40 percent of the remainder after tax and Social Security deductions to the inmate’s spouse and children. If an inmate has no spouse or children, this portion shall be paid to any victims of crimes committed by the offender to the extent of their loss and thereafter to any state compensation fund. The amount remaining is deposited into the inmate’s personal fund.31

Revoking Probation or Parole

States generally provide that probation or parole may be revoked for failure to pay restitution. The offender’s failure must be willful. Because this can be hard to prove, the remedy is not widely invoked. However, in some cases, courts were able to determine that a defendant’s failure to pay was intentional. For example, in one case in Illinois, a defendant had accepted a plea agreement under which he was to pay $5 a month. When he did not make the first $5 payment, the court found that his failure to pay was willful because he had given every indication that he was able to pay that amount. Such willful failure to pay was sufficient to revoke the defendant’s conditional discharge.32

A California defendant had her probation revoked after she had been given numerous chances to pay restitution and had lied to the court regarding a loan application for money to pay restitution. In sentencing the defendant to prison, the trial court judge noted the defendant was not put in prison “for nonpayment of a debt. That’s against our constitution. But this defendant is totally failing to comply with the orders of the court.”33 The appellate court upheld the trial court judge’s ruling.

Extending Probation or Parole

Some states permit the extension of probation or parole when restitution remains unpaid at the time supervision is to expire. Because restitution is a sentencing condition, extending a defendant’s probation or parole enables the criminal justice system to exercise continued jurisdiction over that sentence.

Arkansas law provides that if a defendant fails to make all restitution payments at the time probation ends, the court has authority to continue and extend probation.34 Under Arizona law, probation may be extended up to 3 additional years for a felony and 1 year for a misdemeanor to allow an offender time to satisfy the requirements of a restitution order.35 In Kentucky, parole is to be extended until restitution is paid in full.36

In contrast, Washington provides for continuing jurisdiction as long as restitution remains outstanding; there is no need to specifically extend supervision.

Using State Entities or Private Collection Agencies To Collect Restitution

Several states have amended their laws to allow restitution orders, particularly orders in default, to be referred to private collection agencies. Some states add the collection fee to the amount due from the defendant, and others deduct this fee from the amount paid by the defendant.37 Under Alabama law, district attorneys are authorized to establish special restitution recovery divisions. On written notification that a defendant has defaulted in payment of restitution, the division may collect or enforce such orders. A collection fee of 30 percent of the outstanding amount is added to the debt.38 The district attorney’s office is authorized to retain 75 percent of that collection fee, with the remaining 25 percent to be used by the circuit court for operating expenses. The district attorney’s office is authorized to contract with a private collection agency to collect outstanding debts.39

Kansas has taken a different approach to restitution collection. Under Kansas law, the attorney general is authorized to contract with certain entities to collect restitution and other court costs. The list of approved collection agencies is then published for use by courts and victims. Collection entities receive a fee of up to 33 percent of the amount collected, which is to be deducted from, not added to, the amount owed by the defendant.40 Meanwhile, at least three states—California, Iowa, and Virginia—allow the restitution debt to be referred to the state taxation authorities for collection.41

Converting Restitution Orders to Civil Judgments

Most states allow restitution orders to be converted to civil judgments, especially when restitution remains unpaid at the end of the defendant’s probation or parole. In some states, a restitution order is automatically entered as a civil judgment,42 whereas in others, the victim is authorized to have an order entered as a civil judgment.43 Kansas places an additional burden on the victim, requiring the victim to pay court costs for entering such a judgment.44 In some states, the conversion to a civil judgment happens immediately;45 in others, the conversion or entry takes place only when a defendant defaults on the payment.46

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