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The National Trial Lawyers
Greater Lowell Bar Association


When a judge punishes a defendant for committing a crime, there are a lot of factors that are considered in determining the appropriate sentence. With respect to the defendant, the sentence should be designed to punish him for his misconduct and rehabilitate him so he won’t commit a crime again. With respect to society, the sentence should be designed (in serious cases) to remove the defendant from the community for a period of time so members of the community are not endangered by the defendant’s conduct. Finally, with respect to the specific victims of the defendant’s crime, the sentence should be designed to provide protection (for example by ordering the defendant to have not contact with the victim) and to compensate the victim for the losses sustained as a result of the defendant’s criminal conduct. Such compensation often takes the form of restitution (the payment of money).

A judge who is sentencing a criminal defendant can order the defendant to pay restitution to the victim as long as the amount of money is reasonably related to the actual loss sustained by the victim. For example, where a defendant is convicted of colliding with the victim’s car and then fleeing the scene, the judge can order the defendant to pay for the victim’s insurance deductible to fix the car. Where a defendant stole money from the victim’s apartment, the judge can order the defendant to repay the money he stole. Where a defendant physically assaults a victim and the victim requires medical treatment, the judge can order the defendant to repay the victim for any out-of-pocket medical expenses. A judge in criminal court cannot order the defendant to pay punitive damages or damages for the victim’s pain and suffering (although these types of damages may be awarded if the victim sues the defendant in civil court). Restitution in criminal court constitutes the specific amount of money the victim lost as a result of the defendant’s crime.

How is a restitution amount calculated? Either the defendant and the prosecutor agree to a specific monetary figure, or the judge holds a hearing and determines the correct amount after hearing from witnesses. The defendant’s attorney has the right to cross-examine the Commonwealth’s witnesses at a restitution hearing. The hearing is typically held after the defendant has pled guilty and been otherwise sentenced (usually to a period of probation). Once the specific restitution figure is ordered by the judge, payment of the money by the defendant becomes a condition of probation.

In some cases, the restitution ordered by the judge is huge. For example, in cases where a defendant is convicted of embezzling large amounts of money from a company, the restitution figure might be hundreds of thousands or even millions of dollars. What happens if the defendant is unable to pay the restitution figure? The Massachusetts Supreme Judicial Court has ruled that if the defendant proves he is unable to pay, the restitution amount will be forgiven. This does not prevent the victim from suing the defendant is civil court and attempting to obtain a civil judgment.

There can be serious consequences for defendants in cases where the victim suffered large economic losses. If you are a defendant in this type of case, you should consult with an experienced criminal defense attorney.

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