When a court orders a convicted criminal offender to pay the offender’s victim or victims for losses sustained because of the crime, that payment is called “restitution.” All fifty states have established some type of procedure for restitution payments. The functions and legal definitions of “restitution” and “compensation” are slightly different. Compensation is a payment for losses, such as payment for damages after a car accident, whether or not the person making the payment gained anything. Restitution, on the other hand, is the giving-up of the gains acquired in a crime.

A restitution payment is also somewhat different from a fine. A fine is a predetermined amount spelled out by Colorado law and paid to the court – not to the crime victim or victims – as a criminal punishment. If you’ve been charged with committing a crime in Colorado – and especially if the charge is for a crime such as theft, robbery, fraud, or embezzlement – it is imperative to understand how restitution works in this state.

When a defendant in Colorado makes any type of plea bargain or sentencing agreement with the prosecution, and when that agreement includes restitution, the failure to pay can be used in Colorado to revoke the plea bargain or agreement. If you’ve been arrested in Colorado for any crime, you must take your case to an experienced Denver criminal defense attorney who can explain your rights, your legal options, and the sentencing possibilities you will face.

HOW ARE RESTITUTION ORDERS DETERMINED AND ENFORCED?

How does restitution work in Colorado? How is it determined, ordered, collected, and distributed to crime victims? After criminal charges are filed, a district attorney’s Victim/Witness Assistance Unit contacts all known victims of the crime and asks them to complete a restitution affidavit and provide detailed information regarding their losses. The affidavits are processed and the district attorney’s office then files a motion with the criminal court for an order of restitution.

Before a final criminal sentence is handed down, the Probation Department compiles a pre-sentence investigation report (PSIR) with details about the offender’s criminal record, the pending conviction, the effect of the crime on the victim or victims, and the total amount of the restitution that is owed. Victims are asked to complete a victim impact statement.

A PSIR, including the completed victim impact statement, is then sent to the judge for his or her consideration. When a judge orders restitution, the restitution order is included as part of the final sentence. Restitution is paid through the clerk of the court.

In Colorado cases where offenders are sentenced to both a term of probation and the payment of restitution, restitution is almost always a condition of the probation. While probation officers make sure that the conditions of probation are satisfied, collection investigators in each Colorado jurisdiction establish schedules for restitution payments, monitor those payments, and enforce restitution orders.

WHAT IF A DEFENDANT ORDERED TO PAY RESTITUTION IS IMPRISONED?

In Colorado cases where the offenders are placed in the custody of the Department of Corrections, an individual account is created so that the inmate can designate funds that will be credited toward his or her restitution payments. Four times a year, the Department of Corrections transfers the money from the inmate’s account to the clerk of the court for distribution to the crime victim or victims.

As a condition of parole in Colorado, inmates who are approved for parole must make (or must have already made) restitution payments. Parole officers ensure that parolees satisfy the terms and conditions of their parole. One duty of a parole officer in the state of Colorado is to collect restitution payments from parolees who have been ordered to pay restitution. Parole officers then transfer the collected funds to the clerk of the court.

Colorado offenders who are ordered into community facilities for community corrections must be employed full-time and must turn over their paychecks for processing for restitution payments. Offenders sign a form which specifies the percentage of each paycheck that will go toward the restitution payment. The community corrections program then forwards the money collected from each paycheck to the clerk of the court.

WHAT IS A VICTIM IMPACT STATEMENT?

To help judges make a decision regarding restitution, the victim impact statement spells out how a crime impacted the victim or victims physically, financially, and emotionally. The victim impact statement becomes part of the PSIR which the judge receives prior to sentencing, provided that a victim has completed and returned the statement. To ensure that judges have complete information regarding restitution, some Colorado courts – but not all – delay issuing an order of restitution and schedule a restitution hearing at a later date, after sentencing.

Even when a defendant in Colorado accepts a plea bargain and pleads guilty to a lesser charge in return for a lesser sentence, payment of restitution will probably be required as part of the plea bargain. Restitution may be ordered for, but not limited to, a crime victim’s monetary losses, medical expenses, counseling costs, anticipated future expenses, and any reward money paid out by a victim or victims. A victim’s losses that may not be included in a restitution order include losses for pain and suffering, loss of future earnings, and loss of the “enjoyment of life.”

Crime victims should not expect quick restitution payments. Payments happen over time, especially when the restitution amount is substantial, and payments hinge on the offender’s own financial circumstances, his or her employment status, incarceration status, and a number of other factors. When offenders who have been ordered to pay restitution fail to make payments in a timely manner, the court can take various measures to obtain payment.

Such measures can include wage garnishments, property liens, and the seizure of income tax refunds, lottery winnings, and other funds. Probation or parole may in some cases be revoked for failure to pay restitution.

In all matters regarding restitution and restitution orders, criminal defendants in Colorado have the right to be represented by an experienced Denver criminal defense attorney. When a defendant believes that the evidence presented in a restitution matter is false or inaccurate, the defendant has the right to challenge that evidence, and a prosecutor must prove that the restitution total being requested is a proper and just amount.

By: Dan Murphy

Denver criminal defense lawyer Daniel M. Murphy provides clients in the Denver area with aggressive and sympathetic legal representation. He graduated from the University of Denver Law School in 1994 and worked as a public defender before starting his own practice in 1996. He has defended clients accused of the most difficult criminal and alcohol-related charges. He also serves as a Moot Court Judge for Denver-area law students who rely on his mentorship.