How is “victim restitution” calculated in a criminal case?

Restitution is calculated by totaling the financial losses suffered by the victim of a crime. Different states use different systems. Restitution usually includes things such as

• property damage,
• medical expenses,
• lost income, and
• other costs.

However, it often does not cover things like pain and suffering or legal expenses. The payment of restitution is usually a term of the defendant’s probation.

How does restitution get calculated in a criminal case?

Restitution is calculated based on the financial losses that the victim suffered. These losses have to be the direct consequence of the crime. The most common losses that restitution will cover include:

• medical expenses, from emergency care to physical therapy and rehabilitation,
• counseling expenses, including for the victim’s family members,
• lost wages,
• property damage,
• costs of moving away from the defendant, if deemed necessary for the victim’s safety, like in cases of domestic violence,
• funeral expenses, if the offense caused a fatality, and
• other out-of-pocket expenses that are the direct result of the offense, like an increase in insurance costs, credit monitoring, or the costs of making a home or vehicle accessible for wheelchairs.

Some states will allow victims to recover reasonable attorneys’ fees from trying to collect court-ordered restitution. California is one of these states.¹ Many states will allow victims to recover expenses that are likely to arise after the criminal defendant’s sentencing, like future medical or counseling bills. Victims can also recover any interest that has accumulated on unpaid restitution payments.

It is up to the victim to provide evidence of his or her economic loss to the prosecutor. In most states, restitution will be awarded to cover the full amount of the losses that were substantially a result of the defendant’s actions. The standard of proof, though, is not as high as it is in a criminal case. The prosecutor only has to prove the economic loss by a preponderance of the evidence.

To do this, victims usually provide the district attorney with:

• medical bills,
• repair bills for damaged property,
• purchase receipts to replace destroyed property, and
• pay stubs and timesheets to show lost wages.

This may be a part of the victim impact statement.

The court will order a restitution hearing to calculate the correct amount of reimbursement if:

• at the time of sentencing, the victim is unsure of the full amount of their losses, or
• the defendant contests the amount that has been put forward.

At the restitution hearing, the prosecutor will present evidence of the victim’s losses. The defendant’s criminal defense attorney can argue that the reimbursement amount claimed is either:

• too high, or
• for a loss that is not a result of the crime.

The victim may be called upon to testify at the restitution hearing. If the victim does not want to appear at the hearing in person, alternative arrangements can be made.

Based on the evidence before it, the court will calculate and order restitution for the case. If there is still not enough evidence to estimate a restitution amount, judges in some states may be able to make a court order for restitution in an amount to be determined later.² If a victim’s losses change or are discovered after ordering restitution, the order can be changed.

What losses are not subject to restitution payments?

Certain losses are not subject to victim restitution. These limitations vary, depending on the state’s criminal justice system. Some common limitations to victim compensation, though, are for:

• physical pain,
• emotional distress,
• mental anguish and suffering,
• loss of enjoyment of life,
• loss of consortium, and
• legal or accounting expenses associated with court cases related to the offense.

What if the defendant accepts a plea deal and a charge is dismissed?

If the defendant accepts a plea deal, victim restitution will often be a part of it. Depending on the state, prosecutors may or may not have the power to reduce the amount of restitution owed to the victim. In some states, such as California, criminal law does not give prosecutors the authority to waive a victim’s rights, including the right to restitution.³ In these states, the prosecutor cannot offer a reduced restitution amount as a part of a plea deal.

If the defendant agrees to plead guilty to criminal charges in order to get others dismissed, courts in some states may still order restitution to be paid to the victim of the dropped charges. In California, this can only happen if the defendant signs a “Harvey Waiver.”⁴

When does restitution get paid?

Paying restitution is often a part of the defendant’s probation. Judges can either require that restitution be paid:

• all in one lump sum, or
• in regular installments over a period of time according to a payment schedule.

Many defendants do not have many financial resources to pay the full restitution order all at once. Therefore, installments under a monthly payment plan are common. Victims may be able to arrange it so the payments go through the local probation department, first. This can help victims who want to isolate themselves from the defendant

Defendants will generally have to finish paying restitution in order to complete their probation sentence.

What happens if the defendant does not pay it?

If the defendant does not pay restitution, the victim can report it to the district attorney’s office or the probation officer. Because paying restitution is a condition of probation, not paying it is a probation violation. The defendant can be disciplined or even sent back to jail after revocation of their probation. It will also likely prevent the defendant from expunging the offense from their criminal record.

Many times, the failure to pay is because of the lack of the defendant’s ability to do so. The court may impose additional terms to the defendant’s probation that require him or her to find a job.

Some states, like California, can convert an unpaid order of restitution into a civil judgment against the defendant.⁵ The crime victim can then enforce it in civil court, much like a debt collection. This can even garnish the defendant’s wages to recover the restitution payments.

Many states also provide victim services that include a victim compensation program. This helps victims by providing a source of restitution other than the defendant.