Restitution Q&A

What is restitution? When is restitution ordered? Who orders restitution? How does a victim request restitution? Who may attend the restitution hearings? What factors are considered in the determination of the amount of restitution given? How does the judge determine the method of payment to the victim? Who retains jurisdiction over the case and for how long? What action can be taken if the defendant defaults on restitution payments? Are secondary victims eligible for restitution? How is a restitution judgment in a criminal case enforced and executed? What is a restitution center?

Q: What is restitution?

A: According to Black's Law Dictionary, restitution is the act of giving a victim money to pay for loss or injury as a result of a crime.  Q: When is restitution ordered?

A: Restitution is ordered after a defendant is convicted of a crime that has caused financial damage or loss to a victim.  Q: Who orders restitution?

A: Restitution can be ordered by a judge, the Parole Board, or the Youthful Offender Act (YOA) Board.  Q: How does a victim request restitution?

A: After the defendant is convicted, a court hearing must be held to decide how much the defendant owes the victim as a result of the crime. The restitution hearings must be held unless the defendant agrees at the initial sentencing to the amount due.  Q: Who may attend the restitution hearings?

A: The victim(s) or their representatives (legal or otherwise), defendant, Attorney General, and solicitor have the right to be present and be heard at the restitution hearings.  Q: What factors are considered in the determination of the amount of restitution given?

A: To determine how much the defendant owes the victim and how it will be paid, the following factors will be considered: Financial resources of the victim and defendant. Burden that the manner or method of restitution will have on defendant. Burden that the manner or method of restitution will have on the victim. Ability of defendant to pay the victim on installment or on other conditions to be fixed by the court.. The rehabilitative effect on the defendant which the manner of restitution or the method of payment will offer. Burdens or hardship on victim as a result of the defendant's criminal acts. Mental, physical and financial well-being of the victim. Q: How does the judge determine the method of payment to the victim?

A: Restitution order specifies a monthly payment schedule. Schedule requires full payment for restitution and collection fees by the end of 80% of offender's supervision period. (only on DACOR) If there is no payment schedule specified by the judge, the Department of Probation, Parole and Pardon Services shall impose a payment schedule on the defendant. The Department of Probation, Parole and Pardon Services must send back to court every probationer whose restitution is 6 months overdue. The judge will tell the probationer what must be done as a result. The agent may take action prior to the time when restitution is 6 months overdue. All restitution funds--excluding the 20% collection fee--that are not claimed by a victim for more than 18 months after the last payment was received are transferred to the SC Victims' Compensation Fund. An offender may not be granted a pardon until restitution and collection fees required by the judge have been paid in full. Q: Who retains jurisdiction over the case and for how long?

A: The trial court retains jurisdiction over the manner in which court ordered payments are made to the victim until they are paid in full or until the defendant's active sentence and probation or parole expires. The Parole Board also has jurisdiction. Q: What action can be taken if the defendant defaults on restitution payments?

A: If a defendant does not pay restitution as ordered when placed on probation or parole, a hearing must be held to require the defendant to explain why the default should not be treated as a civil judgment and a judgment lien attached. The court must enter: Judgment in favor of each person entitled to restitution for unpaid restitution plus attorney's fees and other costs ordered by the court. The judgments may be enforced as a civil judgment.  Q: Are secondary victims eligible for restitution?

A: Secondary victims and third-party payees--excluding the offender's insurer--may receive restitution as determined by the court. The primary victim must receive his/her portion of restitution before payments are made to secondary or third-party victims.  Q: How is a restitution judgment in a criminal case enforced and executed?

A: The judgment may be enforced by execution against the property of the defendant as provided by law. The judge must first determine the amount of the judgment to be entered against the defendant which is supported by the preponderance of relevant evidence. Q: What is a restitution center? A: According to the South Carolina Department of Probation, Parole and Pardon Services, restitution centers are community-based residential facilities providing a structured environment for nonviolent offenders. Since 1987, the program has emphasized victim restoration through offender-paid restitution. The program assists offenders in life skills development, substance abuse counseling and adult education. Offenders must maintain employment and perform unpaid public service. The Restitution Centers have established more than 150 employment locations in the Midlands and Upstate with private businesses. A financial plan is developed to assure the payment of victim restitution, court-ordered fines and fees, child support and expenses incurred while at a Center. Offenders are also required to pay for transportation and room and board. Confinement at one of the two Centers may be for a period of three to six months. Discharge plans are developed and forwarded to the supervising agent in order to assist the offender's successful transition to the community.