If you have been the victim of a crime, you are entitled to be compensated for your loss through restitution in the criminal case against the person who wronged you. However, getting and enforcing victim restitution orders that will cover all your costs may not be automatic. If you rely on the prosecutor, you may find what you receive doesn’t live up to your needs or expectations.
What is Victim Restitution?
When you are the target of a crime, it can affect you physically, emotionally, and financially. Victims are entitled to restitution for domestic violence, assault, or any other crime they face. The California Victim’s Bill of Rights (also called Marsy’s Law), says:
- It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to seek and secure restitution from the persons convicted of the crimes causing the losses they suffer.
- Restitution shall be ordered from the convicted wrongdoer in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss.
- All monetary payments, monies, and property collected from any person who has been ordered to make restitution shall be first applied to pay the amounts ordered as restitution to the victim.
That means any time a person is convicted of a crime, their sentence will include court-ordered compensation paid to the victims for the losses they suffered because of the person’s crime. Criminal victim restitution can cover many of the same expenses in a personal injury lawsuit, including:
- Medical expenses for physical injuries and mental health treatment
- Lost wages
- Replacing or repairing damaged property
- Funeral and burial expenses
- Counseling for the victim and their family
- Financial compensation for identity theft or other monetary losses
However, how the amount of restitution is set and what will be covered is often up to the prosecutor and the judge, and they can sometimes drastically underestimate the financial impact on the victims in criminal cases. Often, it is up to the victims of crime’s lawyers to document the “economic” losses suffered and advocate for full and fair restitution orders.
How Does Restitution Work if You Also File a Civil Lawsuit
Criminal restitution hangs on the defendant entering a plea agreement or being convicted beyond a reasonable doubt. However, the criminal process can take months, or even years, especially in cases involving high severity felonies and numerous appeals. Victims don’t have to wait for this process to be over to sue for civil restitution. It is possible to sue for domestic violence, sexual assault, and other claims in California’s civil court while the criminal case is still pending, rather than waiting to see if there is enough criminal restitution to cover the costs.
In fact, even when a California victims’ rights attorney steps into a criminal case and advocates for restitution after a conviction, you may still be entitled to additional compensation in the civil court system. This is because while criminal restitution focuses on “economic” losses, civil restitution allows a victim to be compensated for a broader range of harms. Victims of crimes can sue for emotional distress in California, or seek pain and suffering awards after an assault or domestic violence conviction.
In general, where there is both criminal restitution and a civil lawsuit, a victim is only entitled to be compensated once. The California criminal restitution law only applies to losses related to the crime that cannot be covered by another source (including insurance). If your civil case settles before the defendant is sentenced in the criminal case, the judge may reduce or even eliminate your criminal restitution based on the amount of the civil settlement award. If the criminal case resolves first, the amount you receive in the restitution order can offset any civil lawsuit verdict or settlement.
How to Enforce a Victim Restitution Order
Ultimately, even a victim restitution order is just a piece of paper until the defendant actually pays what is owed. If a criminal defendant’s sentence includes jail time, or if they have a limited ability to pay, the restitution order may give the defendant months or even years to pay off the restitution award using a payment plan. Even then, those orders often go unenforced.
When that happens, California victims’ rights attorneys can enforce the restitution order just like a civil judgment, asking the court to garnish wages, seize bank account assets, and issue other enforcement orders. However, first, the Order of Restitution and Abstract of Judgment must be registered with the civil court. When victims rely on the prosecutor’s office, these enforcement steps can often be missed, leaving victims without an effective way to receive what they are owed.
At ADZ Law, LLP, we help the victims of crimes in Santa Clara County and the Bay Area get more than just a restitution order. We stand beside domestic violence and abuse victims, providing support throughout the process, all the way through enforcement. We can help you make sure you are compensated for all your losses, economic and otherwise, and that the court-ordered restitution is actually paid. We invite you to contact ADZ Law, LLP to schedule a consultation to learn more about how we can help.
