Restitution is the sum to be paid by the defendant to the victim of the criminal act to compensate that victim for the economic loss suffered as a direct result of the criminal act of the defendant. The defendant may pay up to three times the victim’s economic loss. The primary statute covering restitution in Oklahoma is 22 O.S. § 991f
An offender must pay restitution when the property has been stolen, converted, or otherwise unlawfully obtained, or its value substantially decreased as a direct result of the crime, or where the crime victim suffered injury, loss of income, or out-of-pocket loss.
What Is The Process For Restitution?
At the start of the prosecution of the defendant, the prosecutor will provide all identifiable crime victims with information explaining their rights and responsibilities to receive restitution. The prosecutor will provide all crime victims, regardless of whether the crime victim makes a specific request, with an official request for restitution form to be completed and signed by the crime victim. The victim will be asked to include all invoices, bills, receipts, and other evidence of injury, loss of earnings and out-of-pocket loss. The prosecutor will present victim’s restitution claim to the court at the time of the conviction of the offender or the restitution provisions will be included in the written plea agreement presented to the court.
How Much Restitution Is Paid?
The nature and amount of restitution must be sufficient to restore the crime victim to the equivalent economic status existing prior to the losses sustained as a direct result of the crime. However, the crime victim may receive payment in excess of the losses sustained—up to 3x the actual economic loss incurred. The court may direct the return of property to be made as soon as practicable and make an award of restitution in the amount of the loss of value to the property itself as a direct result of the crime, including out-of-pocket expenses and loss of earnings incurred as a result of damage to or loss of use of the property, the cost to return the property to the victim, or the cost to restore the property to its pre-crime condition—whichever may be appropriate under the circumstances. The court must consider pre-existing restitution or compensation orders imposed on the defendant in other civil and criminal proceedings. The court may also order payment of a lump sum or scheduled payments and order 12% interest on the unpaid balance. The amount of restitution will be established regardless of the financial resources of the offender.
The obligation to pay restitution is not limited to the maximum term of imprisonment that the offender could have been sentenced to, nor limited to any term of probation, parole, or extension thereof. It does not expire until it has been fully satisfied. The court order for restitution, fines, fees, or assessments remains a continuing obligation of the offender until fully satisfied. The obligation is not considered a debt, nor is the obligation dischargeable in any bankruptcy proceeding.
Restitution Hearing
Restitution proceedings are equitable in nature and do not require a jury trial to determine the number of damages. In a hearing on restitution, there must be “reasonable certainty” in the amount of loss. This requires proof by a preponderance of the evidence. This means that it is more likely than not that the amount of restitution is correct.
What If Restitution Isn’t Paid?
If a defendant who is financially able refuses or neglects to pay restitution, payment may be enforced by:
- Contempt of court with imprisonment or fine or both;
- Entering upon the district court judgment docket, which has the full force and effect of a district court judgment in a civil case;
- Revocation of the criminal sentence if the sentence imposed was a suspended, deferred sentence, or community sentence; and
- Community service, with or without compensation, to be credited at a rate of $5 per day against the total amount due for restitution. If the defendant fails to perform the required community service or if the conditions of community service are violated, the judge may impose a term of imprisonment not to exceed five days in the county jail for each failure to comply.
Can Restitution Be Reduced?
Restitution may be reduced during a hearing to revoke the defendant’s suspended sentence. Where one of the grounds for revocation is the failure of the defendant to make restitution as ordered, the Department of Corrections must forward to the district attorney all information pertaining to the failure of the defendant to make timely restitution as ordered by the court. The district attorney will then file a petition setting forth the grounds for revocation.
The defendant ordered to make restitution can petition the court at any time for remission or a change in the terms of the order of restitution if the defendant undergoes a change of condition that materially affects the ability of the defendant to comply with the order of the court.
At the hearing, if one of the grounds for the petition for revocation is the failure of the defendant to make timely restitution as ordered by the court, the court will hear evidence. If it appears to the satisfaction of the court from such evidence that the terms of the order of restitution create a manifest hardship on the defendant or the immediate family of the defendant, the court may cancel all or any part of the amount still due or modify the terms or method of payment. Provided, if the court determines that a reduction in the restitution still due is warranted, the court must equally apply the same percentage reduction to any court-ordered monetary obligation owed by the defendant including, but not limited to, fines, court costs, and costs of incarceration.
Sources: 22 O.S. § 991f, 22 O.S. § 991b, & 22 O.S § 991a