What is restitution?
Restitution means to restore. The word has Latin origins like many legal terms. Simply put, the goal of a restitution in a criminal restitution order is supposed to be to put criminal victims back to the position they should have been in if it were not for the criminal conduct. The concept in Washington State encompasses the harm that society has suffered as a whole as well as the individual victim.
Please understand that there are numerous distinctions and nuances that can arise. Every situation is different. This is a broad guide primarily to provide basic information with a focus on some of the unique differences that face enforcement of a restitution order.
Who can receive restitution?
As mentioned, society as a whole is the target of relief. This can be rather broad. Most obviously the direct victim can recover. For example, the victim of an assault can recover for medical bills, lost wages, lost overtime, etc. Outside of the direct victim a Court might order repayment to insurance companies, jail, medical providers, etc.
When can restitution be ordered?
If a defendant is found or pleads guilty and restitution is ordered the next question is the amount of the restitution. Generally, the earlier to start the process the better. However, the Court needs to make a determination within 180 days of sentencing a defendant unless there are reasons to delay a ruling such as when all the damages a victim has suffered isn’t able to be determined yet.
What restitution can be ordered?
Restitution amounts should be for “easily ascertainable damages” such as property damage, medical bills, lost wages, and the like. Restitution orders are not a substitute for a personal injury lawsuit and thus do not include mental anguish, pain and suffering, and the like.
How to collect?
If you are the recipient of restitution it can be frustrating when the payments are so low. The Court does little to compel payments of much substance from the convict. An order of restitution can be enforced by the recipient of restitution the same as any other judgment creditor. What this means is at least the following:
1. Garnishment of wages or bank accounts is available
2. Execution against real property or personal property may be available
3. The judgment is not valid for an infinite time, but only for 10 years or 20 years if extended.
It also means the blood from a stone principal applies. The relief available is always dependent upon the debtor’s available funds. It is possible to find employment, and then to garnish a portion (not all) of that income. A bank account is subject to garnishment, but some money is exempt. A person’s home, even if there is no “mortgage” has a $125,000 exempt amount that is not subject to collection.
An important difference from normal collection law is that when one of several victims enforce the judgment through garnishments or otherwise that the funds recovered are distributed proportionately to each victim’s loss. Normally, whoever collects keeps it all. Note that the sharing is sharing with other victims, and not departments, jails, courts, etc.
Whether you are an attorney that needs co-counsel, a collection agency, or an individual that needs assistance collecting on a debt arising from an order of restitution we’re here to help.
Jonathan Baner handles the collection portion of the firm's practice. He may be contacted by e-mail at jonathan@BanerBaner.com.