What Happens When You Can’t Afford to Pay? Inability to Pay Restitution After a Guilty Verdict

State v. Wyatt

The subject of this case is the ability of a defendant to pay restitution after a guilty verdict of theft by deception.

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark

The defendant was charged with stealing social services benefits (TANF) in the amount of $7000. I have handled numerous cases like this where defendants are charged with illegal use of food stamps, welfare benefits, housing benefits and other state or municipal benefits illegally. Often these are mothers with children who cannot make ends meet and are doing what is necessary in their eyes to put food on the table and or to keep a roof over their head. With no prior criminal history these defendants can often can get into PTI.  I have written about PTI as well. That is a pretrial intervention program which results in a period of probation with no criminal conviction if the defendant successfully completes the probationary period with no new charges and enters into a repayment plan payable over an extended period of time. However, those with a prior criminal record cannot get in the PTI program which probably was the case was here and when the defendant learned she would lose future access to welfare benefits she decided to go to trial.

Although this defendant was convicted the problems this Appellate Division panel found was:

  1. the attorney did not ask for a restitution hearing and
  2. that restitution hearing should have addressed the ability of this particular defendant to pay the $7,000.00 restitution. Pursuant to the sentencing statute NJSA 2C: 44–2(c)(2) the court is required to make a finding of fact about the defendant’s financial resources, likely future earnings, and the defendant’s ability to pay any amount of restitution.

Obviously, when there is a defendant charged with stealing social services benefits in the form of housing benefits, welfare benefits, food stamp benefits, TANF or other social services benefits there is a substantial question of the defendant’s ‘ability to repay’ any restitution given his or her initial entitlement to these low and below poverty line income requirements to be entitled to the benefits in the first place.

Often what happens is when the defendants do not eventually satisfy their the restitution obligation, the restitution component of the criminal conviction is converted to a civil judgment and collection efforts commence.

This affects credit rating and credit scores as well. In addition the preclusion of future benefits places further strain on the family and is a collateral consequence of even getting into PTI. Therefore the restitution hearing and ‘ability to pay’ needs to be addressed at that time of the plea negotiations.  Defense attorneys needs to be made to ensure that the amount of the restitution is based on the ability to pay not just what the PTI coordinator or the prosecutors believe is the “full amount”.

Jeffrey S. Hark, Esq.

609-471-1959. Cell

856-354-0050 Office

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