Articles on restitution

The practice of ordering a civil judgment for costs and fines at the outset of a criminal case has run its course.

In case you missed it, there is a new method of obtaining relief from criminal monetary obligations. Rule 28 of the North Carolina General Rules of Practice was adopted in December of last year and became effective on Jan. 1, 2022. The rule is titled “The Equitable Imposition of Monetary Obligations in Criminal and Infraction Cases Based on the Defendant’s Ability to Pay.” It directs trial courts to determine the defendant’s ability to pay before imposing any discretionary monetary obligations in covered cases. The Administrative Office of the Courts has rolled out a new form, AOC-CR-415, to assist with implementation. The new rule and form provide a pathway to relief for a substantial number of current and past defendants. I have created a webinar discussing the details here, which can be viewed for free or for a small fee if CLE credit is desired. In the spirit of the rule, the .75 hour of CLE credit is offered at a discounted rate. Check it out or read on for some frequently asked questions about the rule.

The Administrative Office of the Courts has issued a new form, AOC-CR-415, through which a person can make a motion for relief from costs, fines, and other monetary obligations. The form also doubles as the order through which a judge can rule on the motion.

Today’s post shares a short paper on restitution that I recently prepared for the Conference of District Attorneys. I thought it might also be useful to other audiences.

Some of you have probably seen the School’s bench card on Criminal Monetary Obligations (it is available here). It may sometimes be helpful as a background reference, but it’s not set up in a way that helps a court put the law into action.

You need a form.

Can a criminal sentence include restitution to a victim who has already released the defendant from all damages in a related civil suit?

In 2010, I wrote a post asking, “Can a defendant be ordered to pay restitution based on offenses that did not result in a conviction?” The court of appeals answered that question this week in State v. Murphy.

A district attorney generally has discretion in structuring his or her approach to deferred prosecutions. The DA could have a broad program, allowing deferrals for all defendants who might be eligible as a matter of law. Or there could be no program at all (aside from the handful of diversions that are mandatory in certain circumstances). Regardless, whatever program the State has must not discriminate against defendants based on an improper classification. Characteristics like religion and race obviously are not permissible bases on which to condition access to a deferral program. A more difficult question, though, is what role a defendant’s financial situation may play in the State’s decision to defer prosecution.

In my last post, I wrote about when the court should and must consider a defendant’s ability to pay a monetary obligation. Today’s post talks about some of the specific factors the court might consider in evaluating a person’s ability to pay.

Today’s post considers when a court should—and sometimes must—evaluate a defendant’s ability to pay a monetary obligation in a criminal case.