Legal Question in Criminal Law in Michigan

Re: payment of restitution - Answer Part I

The order was entered a decade ago, so it may be necessary to see what the Order of Disposition (which is what a sentencing order would be called in a juvenile delinquency case) actually says. Was restitution specifically ordered as "joint & several" or as "pro rata" between the defendants, or was it silent about that?

(Warning: Some explanation of restitution law is necessary!)

Victim restitution is mandated by the Crime Victim's Rights Act, but the CVRA's restitution language has also changed over the last 20 years so knowing when his order was entered may help this analysis. The CVRA has never specified that co-defendant restitution must/should be "joint & several" or "pro rata". (I explain these terms below.) As a prosecutor, I argue (successfully, with supporting appellate decisions) that restitution orders must be joint & several for many reasons:

(i) the CVRA says that the sentencing court must order the defendant to pay full restitution to all victims suffering losses in the course of conduct giving rise to the conviction -- it does not say "order full restitution to be paid between all defendants to all victims ...";

(ii) victims are constitutionally entitled to restitution and must be treated with fairness (Mich Const Art, I Sec 24);

(iii) appellate decisions say that the CVRA must be interpreted broadly, not narrowly -- so, nit-picky / loophole arguments that skew things in favor of defendants should be rejected;

(iv) joint & several is victim-friendly.

*** THIS ANSWER IS CONTINUED IN A "PART II" REPLY BECAUSE OF LIMITS IMPOSED ON THE LENGTH OF LAWGURU.COM ANSWERS. ***

Re: payment of restitution - Answer Part II

*** THIS IS THE SECOND PART OF A REPLY. IT HAD TO BE BROKEN UP BECAUSE OF LIMITS TO THE LENGTH OF REPLIES AT LAWGURU.COM ***

Joint & several means that each defendant/respondent is on the hook for the entire "restitution pie" ... but any money paid by one is credited to the other(s). In some cases, 100% of the victim's losses is collected from just one 'deep pocket' defendant. That may seem unfair to that defendant, but it's great for the crime victim who just wants to be paid back quickly and cares little who paid the money. Fairness to the victim is a crime victim's Constitutional right (Michigan Constitution, Art I, Sec 24). Defendants can try to even the money out later between themselves, either voluntarily or through a lawsuit.

A "pro rata" order divides the pie proportionally and each defendant is responsible to pay just his/her slice of the pie -- or, even worse for prosecutors: forcing us to prove which defendants individually caused which parts of the total damage! (This may be impossible to do.) Pro rata orders are NOT victim-friendly because they are less likely to get paid 100% of the restitution between all the defendants.

I applaud the juvenile court's recent/continued efforts to collect the restitution after so long, but I am puzzled why it is doing it ... since your husband can't still be on probation. A victim or the prosecutor can enforce restitution orders at any time because restitution orders never expire, per the CVRA, and cannot even be discharged in bankruptcy, per federal law. Is the victim or PA behind this?

Your husband should talk with an attorney in your area who is fluent on the issue of victim restitution, the evolving language of the CVRA since the crime date, etc. It may be possible for the attorney to file a motion to limit the restitution to "pro rata" because of the law at the time of the disposition hearing.

But, depending on the amount of unpaid restitution, it might be cheaper in the long run to just pay that off rather than pay an attorney to try to block efforts to force him to pay it off (which might not even be successful).

Morally, making amends for the entire damage is the right thing to do, too.