Failure to Pay Criminal Restitution
UPDATED: February 6, 2020
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When you do not pay court-ordered restitution, you have violated your contract with the District Attorney’s Office. If you are taken into custody, this signifies that the D.A. wants you to remain in custody until your case has been resolved. If you are arrested but not taken into custody, the D.A. is indicating that you need to take the case more seriously. You are likely being arrested because you have not made payments at all, not made payments in full, or not made payments in a timely manner.
Now that you have been arrested, you can expect a contempt of court case in criminal court, a civil lawsuit by the alleged victim who you have not paid, and a violation of probation (VOP) or motion to revoke (MTR) hearing in criminal court. A contempt of court action can occur because the criminal court judge who ordered you to pay restitution may institute a charge of contempt of court against you. This creates a second court case in which you can be penalized with fines or jail time for failure to pay the restitution to the victim in the first case as ordered by the court.
A civil action may also occur if you fail to pay restitution. If the victim institutes a civil action, you are likely to lose if you defend the case, because the standard of proof is much less in civil court. The victim only must show that it is more probable than not that you caused the harm. The fact you pleaded guilty or were found guilty may even foreclose your opportunity to defend yourself. If the vicitm wins, they may then take collection actions against you. For example, the victim may seize bank accounts or even have your wages garnised. The garnishment of your wages usually is governed by different rules than the garnishment of your assets. If other parties are in line to collect debt from you, a state's rules regarding the rights of victims in criminal cases to be compensated for financial damages may make them a priority creditor. Typically, restitution ordered by a criminal court cannot be discharged in bankruptcy. Some states will also suspend your driver’s license and possibly other licenses, such as your fishing license, until you have paid back restitution relating to a criminal case in full.
Revocation of Probation or Probation Violation
The D.A. may file a motion to revoke your probation for non-payment of restitution. After they file the motion, the court holds a hearing to decide whether to revoke your probation. The violation case will likely have more severe consequences than the contempt of court or collection case. Any deal you made with the D.A. is now gone. You can face up to the maximum time of incarceration and the maximum amount of fines for your original charge. With some technical, minor exceptions, the judge is required to subtract the time you have already spent incarcerated and the amount you have already paid in fines from your penalty.
At a violation of probation hearing, you have fewer rights than you would if you were facing trial in a new case. You do not have the right to a jury trial. The D.A. has a lesser burden of proof at your hearing. The new burden of proof is usually called a “preponderance of the evidence.” This burden of proof is usually 50-51%. This is far less than the burden of proof for a new case. The standard of proof for a new case is beyond a reasonable doubt, with the burden of proof for the D.A. at about 90-95%. You have some rights at a violation of probation hearing: the right to present witnesses; the right to cross-examine, or ask questions, of witnesses the D.A. calls to testify; the right to submit information to the court about your situation; and the right to have an attorney present to represent you.
In many states and in federal court, probation officers are present at violation of probation hearings. They testify to the judge about your progress in paying back the money and making lifestyle changes since your last court appearance. If the judge hears from your probation officer that you have done very little since your last court appearance, you may receive a stiff sentence.
Avoiding Problems Caused by Restitution Non-Payment
In order to resolve your case or cases in the best possible manner, consult an experienced criminal defense attorney. See if the alleged victim will sign an agreement accepting a lump sum, or an amount that in some way differs from what you were ordered to pay as restitution in the criminal case. This would be a settlement. The District Attorney would not have to drop their charges. They might be motivated not to pursue your violation of probation case, or if they pursued the case, ask the judge not to punish you harshly.
If you cannot offer the alleged victim any payment, have your attorney explain to the court why you have not paid the money. If you have been experiencing financial difficulties, you should have been telling your probation officer this on a regular basis. If you did that, your probation officer has an obligation to report those conversations to the judge. Documentation helps explain your situation. Have proof that you have applied for jobs on a regular basis. Show your attorney and the court any efforts you have made to train for different types of jobs. Also be able to document your monthly expenses. The judge may ask to see these records. You will not get much sympathy from a judge if your budget includes luxuries such as a full cable package for yourself.
Most states have a provision which prevent a court from revoking your probation because of an inability to pay. When you are under extreme financial stress, it is more likely that the judge will work with your probation officer. The two parties want to get you on a plan to pay back the money. There is also a chance the judge may order you to stop paying restitution by temporarily suspending the obligation until you get back on your feet. If time is an issue, they may also agree to extend your probation and spread out your payments over a longer period of time. This will lower your monthly payment. That will make it easier for you to make your restitution payment. The court may also waive other fees, such as the fees for probation, so that you will have more money available to pay your restitution.
When you work with your attorney to resolve your case, ask the court for at least three things: release from custody; no sentence or a light sentence for your failure to abide by the terms of your probation; and an order for you to stop paying restitution. Times are hard and you may feel financially strapped. Regardless, ignoring any term of your probation can lead to serious consequences.