Restitution: What Happens after Default?
Even with the proper tools in place to promote success with defendant payment plans, some defendants will default in payment.
The use of delinquency letters has been called the most effective means of enforcement. For a relatively low cost, a letter sent immediately following a missed payment signals to the defendant that payments are being monitored and that consequences will be imposed. This step alone has increased collection rates in many jurisdictions.
Sanctions related to supervision.
Restitution payment is often a condition of probation or parole. Sanctions for violating this condition can include:
- increased supervision visits,
- requiring defendants to produce additional financial information, such as recent bank statements, or
- loss of privileges, such as travel.
In Maricopa County, a probationer who is 30 days delinquent must complete a new Payment Ability Evaluation worksheet. The form is designed to help an offender identify discretionary spending that could be applied to restitution payments. This burdensome form also acts as a reverse incentive for defendants to stay current with their payment schedule.
The probation department has also defined a set of graduated sanctions that apply when a payment is late by one month, two months, three months, and six months. Defendants who are more than six months delinquent may be referred to Maricopa County's restitution court, which uses the civil contempt process to enforce restitution orders. This process is described in detail in Chapter 3, " Restitution Enforcement," of the National Center's publication, " Making Restitution Real: Five Case Studies on Improving Restitution Collection."
In many states, probation or parole can be revoked or extended for failure to pay. For this sanction to be effective, probation and parole officers should routinely check the defendant's payment status, especially prior to the scheduled termination of supervision, and report any default or remaining balance to the court. This requirement should be spelled out in internal supervision procedures.
States impose a variety of other consequences for defaulting on a restitution order:
- Suspension of a driver's license or motor vehicle registration, or prohibiting the reinstatement of a license or registration previously revoked, where restitution is outstanding. Many states that impose this consequence limit it to traffic or motor vehicle cases, but others do not have this restriction.
- Ineligibility for expungement of criminal records if restitution is outstanding. Some of those laws are limited to juvenile records or DUI records.
- Ineligibility for restoration of voting rights where restitution is not paid.
- Ineligibility for public benefits. In Pennsylvania, one who defaults in the payment of restitution may not receive public assistance. See the statute and a sample form used in implementing this sanction.
- Arrest. In some states, such as Alabama, a warrant may be issued for the arrest of a misdemeanor defendant who has defaulted in payment and failed to respond to other efforts to address the delinquency. The bond on the warrant is cash, and is set for the total amount due.
|TIP: Collection Measures after Default |
A visit to the defendant's home might help the defendant to identify assets that can be sold, or major new purchases that indicate an offender has undisclosed income.
One low cost collection method is a wage attachment or garnishment order. Some states issue an order at the time restitution is ordered; others permit courts to issue an order when a defendant defaults. In some jurisdictions, a wage attachment is entered at the time of sentencing, although it may not be enforced until the defendant defaults. Maine's sentencing form provides an example. Florida law provides another example. In Isabella County Trial Court (Michigan), the Installment Payment Agreement form includes the defendant's agreement to an assignment of wages in the event of default.
Income tax refunds and other sources of collection.
Eighteen states allow outstanding victim restitution orders to be collected from a defendant's income tax refund. In addition to those states, New Jersey uses this approach to collect restitution owed to the victim compensation program.
- Income tax refunds have proved to be an important source of collection: Colorado recovered $6.3 million in 2010 alone, according to a summary of that state's program.
- Minnesota's department of revenue explains this approach in detail.
At least 8 states allow outstanding restitution to be collected against lottery winnings.
States may also attach unclaimed property owing to the defendant. Colorado is one example.
A majority of states allow outstanding restitution to be collected in the same manner as a civil judgment.
Where the defendant has disappeared.
Many tools are available to help locate defendants who have disappeared. These include:
- ACCURINT, a commercial locating service;
- Free online people search engines, such as www.zabasearch.com, www.pipl.com, and www.switchboard.com
- Post office checks;
- Utility service checks;
- Department of Motor Vehicles records; and
- Facebook and other social networking sites.
Verify the defendant's address and employer at each visit.
Using outside collection agencies.
Many jurisdictions use outside collections agencies, typically after exhausting in-house methods to collect the restitution. One approach is to impose a collection fee if a defendant has defaulted in restitution. Under Alabama law, for example, when a defendant defaults in payment, a 30% fee is added to the amount due. Of that additional fee, 75% is distributed to the county district attorney, and 25% is distributed to the circuit court clerk. District attorneys and courts are both authorized to contract with private collectors.
California has entered statewide master vendor agreements with several collection agencies. In choosing those agencies, California solicited proposals and used 6 collection experts to evaluate each collection program based on certain criteria, including technical understanding and approach to collections. Following that technical evaluation, they considered the cost or pricing proposed. The Judicial Council of California, Administrative Office of the Courts, then entered into master agreements with the 7 agencies selected.
The resulting master agreements are available for any local court or county to complete, without having to go through a separate RFP (request for proposals) process. They provide a copy of each master agreement, statement of work, applicable forms, fee schedule, and blank participating agreement for use by local courts.
Kansas uses a similar process in using facilitating the use of third party collections agencies. Vendors submit a proposal to collect for a specific judicial district or districts, or for authority to collect statewide, to the state Procurement Negotiating Committee. That committee consists of a member representing the Courts, a member representing the State Administration, and the executive director of the states Crime Victim Compensation Board. The committee reviews proposals and awards contracts for approved vendors to collect the debts owed. The vendors are then free to seek agreements with the chief judge of any judicial district.
At the judicial district level, the chief judge and the clerk of the district court determine when delinquent accounts are turned over for collections. The cost of collection, which by law may be up to 33% of the amount owed, is added to the original amount owed by the offender.
This toolkit was produced by the National Center for Victims of Crime under cooperative agreement 2009-SZ-B9-K006, awarded by the Office for Victims of Crime, Office of Justice Programs, U.S. Department of Justice. The opinions, findings and conclusions or recommendations expressed in this document are those of the contributors and do not necessarily represent the official position or policies of the U.S. Department of Justice.
Copyright © 2011 National Center for Victims of Crime. All rights reserved.