Practice Tips on Restitution

by Richard L. Cunningham

Although the statute provides a comprehensive framework for raising and resolving claims to restitution, my experience suggests the following practical considerations for attorneys on both sides of the issue:

•Proofs. Restitution disputes are resolved by the court, with the prosecution bearing the burden of proving the losses sustained by any victims by a preponderance of the evidence. Victims must be directed to provide receipts or other documentation to the prosecutor.

The court’s probation department collects information on restitution in its preparation of a presentence report. Note that an unchallenged presentence report is sufficient to support a court’s finding as to the appropriate amount of restitution. Accordingly, defense counsel must carefully review a presentence report for all recommendations concerning both the basis of restitution and the appropriate amount. Objections to questionable recommendations in the presentence report put the prosecution to its proofs as to whether the victim has actually suffered the claim loss and whether the value of the loss can be properly supported.

•Issues of Scope. The prosecutor should advise the court of all losses arising from the offender’s "course of conduct." The court has the authority to order restitution to all victims who suffered a loss by his or her criminal course of conduct, even though the specific criminal acts committed against some of those victims were not the basis of the defendant’s conviction. This is particularly important where a plea agreement has resulted in the dismissal of some counts. Restitution for such losses may be had even though no conviction resulted.

On the other hand, restitution is not a complete substitute for civil damages: It covers only those losses that are both (1) easily ascertainable and measured, and (2) a direct result of the offender’s criminal acts. If the prosecution asserts a claim for any "actual loss" beyond that expressly authorized by the statute or recognized by the appellate courts, a defense attorney would be well advised to preserve the issue by proper objection at the time of sentencing.

•Ability to Pay. Even though recent statutory amendments have made the defendant’s ability to pay irrelevant in setting the amount of restitution, it remains an important consideration in the enforcement of any restitution order. Defense counsel should clearly explain the defendant’s duty to make a good faith effort to pay the restitution and how it may protect him from additional penalties. A defendant may not be imprisoned, jailed, or incarcerated for a violation of probation or parole or otherwise for failure to pay restitution unless the court or parole board determines that he or she has the resources to pay restitution but has not made a good faith effort to do so.

Defense counsel should also object if a court attempts to enforce an order for restitution by allowing reduced jail time if a defendant pays the assessed restitution. A sentence allowing a defendant reduced prison time if he or she pays restitution is not materially different from a sentence that requires the defendant to serve additional time if he or she does not pay restitution. In either event, the result is a shorter term for a defendant who can and does pay, and a longer term if he or she cannot and does not pay. Such a result is clearly prohibited by the statute and the equal protection clauses of the federal and state constitutions.

Richard L. Cunningham
Richard L. Cunningham is a sole practitioner, specializing in criminal defense and attorney discipline law. A former chair of both the State Bar Criminal Law Section and the Detroit Metropolitan Bar Association Criminal Law Section, he previously served as an assistant prosecutor for Wayne County, and as a recorder’s court judge.

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