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Can I Go to Jail for Not Paying Restitution?

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By Ephrat Livni, Esq. on March 30, 2016 3:59 PM

You were ordered to pay restitution at your sentencing hearing and you haven't done it, so you're scared you will go to jail. And you may, although there is a process and a prosecutor will have to prove a willful failure to pay in order to punish you for this.

In some criminal cases, restitution is ordered as part of sentencing, whether after a trial verdict or in a negotiated resolution. Paying restitution is often made a condition of probation, for example. Let's take a look at how restitution arises and what happens if you do not pay.

Paying Restitution

Restitution is often made a condition of probation as a way to keep a defendant on the hook for failure to pay, although this may vary from state to state. Say you were ordered to pay restitution as part of probation, then there is probably a set amount you must pay on a monthly or other regular basis.

Restitution goes to victims, not to the state, and when you do not pay it, your probation officer will probably issue a violation. A probation violation hearing is not like a trial -- the burden of proof on the prosecution is lower than at trial. But it also not automatic -- your officer cannot just decide you have violated and send you to jail.

A notice of violation will be sent to the prosecution and the state will have to prove that you willfully did not pay. That means if you cannot pay, you cannot be violated but if you choose not to pay, you will be punished. At that point if you are found to have violated, the judge will decide if and how to punish this. If restitution is the only basis for a violation, the court may decide that you should not be in custody so as to not further disrupt your payment schedule.

Handling Restitution

If you are in trouble with your restitution payments, don't wait for probation to issue a violation or the court to order a hearing. Make contact with probation. Develop a relationship with your officer so that when something happens, they will give you a break and maybe let you have a little extra time to pay before issuing a violation.

Talk to a Lawyer

If you or someone you know has been charged with a crime or has already been sentenced and is facing a probation violation for failure to pay restitution or fines, speak to a lawyer. Many criminal defense attorneys consult for free or a minimal fee and will be happy to assess your situation.

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