If you have been charged with a property crime, such as larceny, malicious damage of property, or leaving the scene of property damage, you don’t have to just think about defending your case, you also have to be prepared for restitution issues.
Property crimes usually require some sort of restitution to be paid as a result of their disposition, whether that be at a plea or after trial. However, it is common that the restitution numbers are inflated, and even illegal. In this blog post, I will discuss how restitution works in the criminal courts.
First, it is important to understand how restitution has been defined. Restitution is an amount of money that is “limited to economic losses caused by the defendant’s conduct and documented by the victim.” See Commonwealth v. McIntyre, 436 Mass. 829 (2002). What this means is that restitution is used to ensure that the victim is made whole. It’s not to punish the defendant, and it cannot give the victim some sort of economic benefit that they didn’t have prior to the case.
Did you break your ex-girlfriend’s television during a fight? Restitution can be ordered so that she can replace the television she lost – not get a larger or better one. Did you steal your neighbor’s diamond bracelet? Restitution can be ordered to replace it, and it does not take into consideration any sentimental value that it may have had.
While this seems simple, often people ask the court to order restitution that they are not legally entitled to have. Here are some of the most common examples:
- Lost wages. Restitution cannot be ordered to compensate the victim for time spent in court. It also can’t be ordered for time spent in the hospital that would otherwise be spent at work.
- A new car. It doesn’t matter if the victim was underwater on his car payments. If they had insurance, restitution can only be ordered for their deductible or actual repairs that did not go through insurance.
- Medical bills. Once again, insurance matters. Restitution can only be the actual out-of-pocket medical expenses, it doesn’t matter if someone was billed $200,000.00 for medical bills, if they only paid $800.00, then they can only get $800.00.
So, how is restitution calculated? Often times, it is the result of an agreement. This occurs when the prosecutor presents the defendant with a bill detailing the restitution, and the defendant agrees to pay it. But what happens if the prosecutor is seeking an unreasonable amount? Or they don’t have any actual proof that the victim is out any money? That is when a restitution hearing is necessary. At such a hearing, “the Commonwealth bears the burden of proving by a preponderance of the evidence the amount of the victim’s losses.” Commonwealth v. Nawn, 394 Mass. 1, 6 (1985) That means the prosecutor has to put the victim on the stand to produce proof of the actual monetary amount that they are seeking.
Even with all these safeguards for defendants, it is still possible to find yourself owing a large amount of restitution that you cannot pay. If that is the case, you may have the ability to reduce the amount of restitution after a Henry Hearing. At such a hearing, you can show the court that you don’t have the ability to pay the restitution, and therefore you should not be punished for failing to pay. See Commonwealth v. Henry, 475 Mass. 117 (2016).
If you are charged with a crime were restitution could become an issue, or you have been ordered to pay an amount of restitution that you cannot afford, contact DeGiacomo & Mikhlin, P.C. today for a free case evaluation.