Criminal Restitution 101 by Brett Steele

In another post, I talked about a police officer manipulating a report by generously labeling an accused’s friends as “victims.” I explained the concept of what a victim is as well as the right to not be interviewed or deposed by the accused’s attorney.

Another victim’s right is to receive prompt restitution from a convicted person that caused the victim’s loss or injury. Article 2.1 of the Arizona Constitution, also called the Victims’ bill of rights, explains this in subpart A(8).

ARS 13-603(C) introduces the language “full economic loss” as the standard for what a convicted person must pay to his victims.

ARS 13-105(16) defines economic loss as “any loss incurred by a person as a result of the commission of an offense. Economic loss includes lost interest, lost earnings and other losses that would not have been incurred but for the offense. Economic loss does not include losses incurred by the convicted person, damages for pain and suffering, punitive damages or consequential damages.”

ARS 13-804 tell us more about how the court will handle restitution—the defendant’s economic circumstances shouldn’t be considered, multiple defendants will be on the hook jointly and severally, a hearing with testimony may be warranted in front of the judge, etc.

To figure out what does count as “economic loss” takes a little more analysis. I will discuss some points and what they tell us about restitution.

• "Loss" in this context does not mean you come out ahead. An example–If John Doe is convicted of stealing and wrecking your car, you are entitled to the costs to recover/repair your car, the cost of a rental car while your car was out of commission, and any lost wages related to the autotheft that you can prove. You are not entitled to compensation due to inconvenience or stress, etc.
• If your insurance company pays out to cover the costs of the repairs and car rental, you are not entitled to those costs. Your insurance company can come after the defendant to recover those costs. You are, however, entitled to the $500 or $1000 or whatever you paid as your deductible.
• If the defendant returns a Rolex that he steals from you, you are not entitled to the cost of the watch. Again, the objective is to make you whole, not to put you ahead.
• ARS 13-807 supports this idea that restitution is not to put you ahead. In addition to saying a defendant who is convicted cannot deny the criminal allegations in a parallel civil proceeding, it says a criminal restitution order does not preclude the victim from pursuing additional damages not included in the criminal restitution. This is where a victim could pursue actual damages, not just economic loss. That means that you can still sue the defendant after you’ve been awarded criminal restitution. It is important to note that Arizona law will not let you request restitution for an expense that an insurance company has already paid out on.

A big difference between criminal restitution and a civil award is the involvement (or lack thereof) of insurance companies. Most civil tort (personal injury) cases get insurance companies involved to represent the defendant.

Whether it’s through settlement or a jury verdict, the insurance company is typically responsible for paying out for the damages. In the event of a criminal restitution order, insurance will not be directly involved.

A criminal defendant who cannot pay the entire amount at once will be required to pay towards restitution monthly. That figure will be determined by the judge typically at the time of sentencing or a restitution hearing.

A common theme in criminal cases is the defendant’s poor financial situation. Of course, there are exceptions. There are financially stable individuals who make poor decisions and commit crime. More common, however, is a defendant whose financial situation is part and parcel with their criminal behaviors. In the case of defendants who cannot pay (after all, you can’t get blood from a turnip), there are a few options to pursue restitution.

First, ARS 13-806 tells us that a victim may file a lien on the defendant’s property. Once the lien is perfected, the victim holds onto that interest until restitution is paid in full. If that doesn’t happen, the victim can begin the process to seize that property to repay what is owed.

So, the jury agreed with me and my client and he was found not guilty. It’s a very, very short verdict. Deliberation takes anywhere from four minutes to weeks. I mean I’ve had it go both ways. And just because they’re deliberating for a long time versus a short time, it really doesn’t mean anything.

Second, a court can order a Criminal Restitution Order. This happens once a defendant is

• released from prison
• terminated from probation

If ordered in Maricopa County, there is a County Collection Unit that that can intercept money from Arizona Income Tax Returns, lottery winnings, civil judgements, etc. Most jurisdictions have a similar process.

Final Thoughts

Understanding restitution for a client is what we are obligated to know as attorneys. If you or your loved one faces criminal charges where restitution is alleged, give us a call at (602) 932-0659. Experience matters in these situations.