What is “Restitution” and When is it Required For a Criminal Conviction?
By Daniel T. Geherin
The financial cost of a criminal conviction can be staggering. Fines and costs—those financial penalties ordered by a Judge at sentencing---usually surpass $1,000.00 for a simple misdemeanor conviction (including OWI). Felonies usually cost two to three times more. Judges add on several mandatory costs—including victim’s fund fees, police recovery fees, and assessment fees. When you’re placed on probation, you also must pay monthly oversight/supervision fees which usually cost $30-$60 per month for the “privilege” of being on probation. If you’re on felony probation for two years, you’ll have to pay nearly $4,000.00 in court fines.
Imagine the financial toll an additional order of RESTITUTION can cause you. Restitution is money a criminal defendant must pay to the victim(s) of the crime for their financial loss. If you’re convicted of theft or embezzlement, you must pay back the victim for every dollar that was taken. If you’re convicted of OWI involving an accident, you must pay back the other driver(s) for property or other damages. If you’re convicted of an assaultive crime against someone, you must often pay costs for counseling services that the victim underwent (or plans to). These costs can be in the thousands of dollars on top of the mandatory fines, costs and assessments.
Geherin Law Group, PLLC. has defended thousands of criminal cases in Ann Arbor and throughout Southeastern Michigan. Firm founder Daniel T. Geherin is a former prosecutor and board-certified criminal trial attorney who has been practicing law for 25+ years. He’s been rated by Martindale-Hubbell as AV-Preeminent; listed in The Best Lawyers in America; named by Super Lawyers Magazine in the field of Criminal Defense; recognized as a “Top Lawyer” by Detroit Business Magazine; and scored 10/10 “superb” by AVVO.com. He also has received 300+ 5-star client reviews.
Every day Dan and his team answer questions like these from clients suffering from financial turmoil after a criminal charge:
1. What legal basis does the court have for imposing restitution?
2. What is the definition of a “victim,” and how is restitution calculated?
3. What if I cannot pay the full amount?
4. Is there a way to negotiate a restitution amount?
The William Van Regenmorter Crime Victim's Rights Act (CVRA) mandates that a sentencing court order convicted defendants to "make full restitution to any victim of the defendant's course of conduct that gives rise to the conviction. A "victim" is "an individual who suffers direct or threatened physical, financial, or emotional harm as a result of the commission of a crime." Under the CVRA, restitution is available to compensate victims for losses associated with either physical or psychological injury.
Michigan's general restitution statute, MCL 769.1a, defines "victim" in the same fashion, clarifying [*360] that the term reaches individuals harmed "as a result of the commission of a felony, misdemeanor, or ordinance violation." The CVRA provides that the prosecution has the burden of proving by a preponderance of the evidence the amount of the victim's loss. The law requires a direct, causal relationship between the conduct underlying the convicted offense and the amount of restitution to be awarded.
You can challenge a restitution order and you’re entitled to a restitution hearing requiring the prosecutor to prove actual damages. Prosecutors play hardball and insist on an “agreement” to restitution in exchange for a plea negotiation. A skilled and savvy criminal defense lawyer in Ann Arbor can try to negotiate a lesser restitution amount, especially if paid upfront. A good criminal attorney must know all of the laws pertaining to the CVRA to effectively litigate and fight improper restitution claims.
If a person hasn’t paid full restitution, Judges will extend their probation for a long time (up to 5 years for most felonies) and continue to squeeze payments. If a person doesn’t make a legitimate effort to pay, they can have their probation terms revoked---meaning a jail or prison sentence awaits. A skilled criminal defense lawyer in Ann Arbor might be able to fight these revocation hearings and prevent incarceration, especially if the client has made a good faith effort to pay.
If a loved one or you have been charged with a crime in Washtenaw County or Southeastern Michigan, and you want to discuss options on how to avoid or mitigate the high costs of restitution, please call or email GLG Michigan 24/7 at (734) 263-2780 or online info@GLGMichigan.com.
Geherin Law Group: Personal Attention, Personal Options, Personal Justice.