In criminal cases, restitution may be awarded to the victim(s) when deemed appropriate by the court. The criteria for determining whether restitution is appropriate and if so, what amount, varies from state to state. In Minnesota, the statute lists two factors the court uses to decide whether restitution should be awarded, and the amount: (1) the amount of economic loss sustained by the victim as a result of the offense; and (2) the income, resources, and obligations of the defendant.

There are two other important subdivisions of the statute that are often in controversy. Subdivision 2a requires that the court include a payment schedule for the defendant to make payments within their means. Subdivision 3 places the burden on the defendant to produce evidence to challenge the amount of restitution.

In a recent Minnesota Appellate Court decision, State of Minnesota v. Cloutier, Cloutier argued that the state did not provide sufficient evidence to prove his ability to pay restitution and the court did not adequately consider his ability to pay. The court ruled that the statute does not place the burden on the state and the court need not base the amount of restitution on the defendant’s resources, but rather expressly state that is has considered those factors in their decision. In this case, the court found that although Cloutier may not be able to make payments while incarcerated if he did not work, there was no evidence that Cloutier was unable to work while incarcerated, and there was evidence that he would receive social security payments upon release. However, the court remanded a third issue that the court did not comply with the statutory requirement of including a provision for a payment schedule in the restitution order.

There are three key takeaways from this decision and the application of the statute. First, the state has the burden of providing evidence of the victim(s) economic loss, and the defendant may only challenge the amount (if any) restitution should be awarded, rather than challenging their ability to pay the restitution.  Second, the court only needs to consider the defendant’s income, resources, and obligations in determining the payment plan, not in determining whether the defendant can reasonably pay the amount of restitution that is being awarded. Finally, the court must actually create a payment schedule or assign the task to someone else. It does not satisfy the statute to just say that the defendant will make small payments.

One issue that the court does not address in the Cloutier case, but the defendant seems to imply in his argument is whether the defendant will realistically have the means to pay restitution whether it be while incarcerated or upon release. The federal restitution process offers programs that assists victims in recovering from offenders by encouraging offenders to allot a portion of their prison wages to paying their restitution obligations, or while the defendant is under probation the probation officer will ensure restitution is paid when possible. Even with these efforts, the amount offenders are able to pay is usually very low and many victims will never receive full restitution payment.

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