Restitution: Do I have to Pay it and does the court have to consider my ability to pay?

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

Restitution has become an additional area of criminal litigation in recent years.  As a result the appellate courts have ruled that even if restitution has to be paid, the trial court must conduct a hearing addressing whether the defendant has the ability to pay given his/her particular financial circumstances at the time of any sentencing.  In other words, assuming restitution is in play, i.e. in a credit card or any other type of financial crime or crime where the state produces evidence of a financial loss from any victim, then next question the court must ask is, “Can this defendant can afford to make payments?”  This appellate court stated directly:

“[R]estitution is proper only when the loss sustained by a victim is the direct result of the criminal offense.” State v. Newman, 132 N.J. 159, 169 (1993). In imposing restitution, “the court must balance the goals of victim- compensation and offender-rehabilitation, and thoughtfully establish a fair and reasonable amount of restitution and method of repayment.” Id. at 173. Indeed, before imposing restitution, “due process requires a hearing on both the ability to pay and the time period for making restitution.” State v. McLaughlin, 310 N.J. Super. 242, 264 (App. Div. 1998) (quoting State v. Orji, 277 N.J. Super. 582, 589 (App. Div. 1994)).

Specifically, before imposing restitution, courts are to consider “if the defendant is able, or given a fair opportunity to do so, will be able to . . . make restitution.” Newman, 132 N.J. at 169 (quoting N.J.S.A. 2C:44-2(b)). “If the court is satisfied that a defendant possesses or could possess that ability, it may set ‘the amount and method of payment . . . tak[ing] into account the financial resources of the defendant and the nature of the burden that its payment will impose.'” Ibid. (alterations in original) (quoting N.J.S.A. 2C:44-2(c)). “[I]n determining the amount and method of payment of restitution, the court . . . shall set the amount of restitution so as to provide the victim with the fullest compensation for loss that is consistent with the defendant’s ability to pay.” McLaughlin, 310 N.J. Super. at 263 (quoting N.J.S.A. 2C:44-2(c)).

As a result, the trial court at any sentencing must conduct a separate due process hearing to address the defendant’s ability to pay prior to entering any Order of Restitution incorporated into any Judgement of Conviction or PTI payment plan.

Review the full restitution case here.