Of everything a Wisconsin sentencing court does, restitution is the part clients understand least and worry about longest. The prison term ends. The probation term ends. The restitution order, in a great many cases, does not — it converts into a civil judgment and follows the person out the door.
It is also the one financial component of a sentence where the defendant has a genuine, statutory role in setting the number, and where that role is routinely forfeited by silence. This article explains where the figure comes from, who has to prove what, and what actually happens when the money is not there.
Restitution is the default, not the exception
Under Wis. Stat. § 973.20 (1r), when a court imposes sentence or orders probation for a crime, it shall order the defendant to make full or partial restitution to any victim of a crime considered at sentencing — unless the court finds substantial reason not to do so and states that reason on the record. For a crime involving conduct constituting domestic abuse under § 813.12 (1) (am) or § 968.075 (1) (a), the statute narrows the escape hatch further: the court must order restitution unless it finds that doing so would create an undue hardship on the defendant or the victim, and describes that hardship on the record.
The word “shall” carries real weight here. The court of appeals has held that the provision imposes a mandatory duty, and that a sentence failing to provide for restitution is illegal and subject to amendment to provide it. State v. Borst, 181 Wis. 2d 118 (Ct. App. 1993). A defendant should not plan on the subject simply not coming up.
“A crime considered at sentencing” is wider than the conviction
This is the first place the number gets bigger than people expect. Section 973.20 (1g) (a) defines “crime considered at sentencing” to mean any crime for which the defendant was convicted and any read-in crime. Paragraph (b) defines a read-in crime as one that is uncharged, or dismissed as part of a plea agreement, that the defendant agrees the court may consider at sentencing and that the court does consider.
The practical consequence: a plea agreement that dismisses four counts and reads them in does not dismiss the restitution attached to them. And the defendant need not personally admit the read-in charge for restitution on it to be ordered. State v. Cleaves, 181 Wis. 2d 73 (Ct. App. 1993). Read-ins are often a sound trade. They are not a free one, and the restitution consequence belongs in the conversation before the plea, not after.
What restitution can cover
The statute is a list, and what is not on the list cannot be ordered.
- Damaged, lost, or destroyed property — § 973.20 (2) (am) permits an order to return the property, or, where return is impossible, impractical, or inadequate, to pay the reasonable repair or replacement cost or the greater of the property’s value on the date of damage or its value at sentencing less the value of anything returned. Retail merchandise is valued at retail.
- Bodily injury — § 973.20 (3) permits the cost of necessary medical, psychiatric, and psychological care and related devices; physical and occupational therapy and rehabilitation; the injured person’s lost income; and, where the injured person’s sole employment was as a homemaker, an amount sufficient to see those duties continued until the person can resume them.
- Death — § 973.20 (4) permits the cost of necessary funeral and related services under § 895.04 (5).
- Special damages generally — § 973.20 (5) (a) permits all special damages, but not general damages, substantiated by evidence in the record and recoverable in a civil action against the defendant for the conduct in question. Paragraph (b) adds the victim’s lost income and reasonable out-of-pocket expenses arising from the filing of charges or from cooperating in the investigation and prosecution.
The general-damages exclusion is the boundary that matters most. A court may not assess pain and suffering, anguish, or humiliation as restitution, though it may award as special damages a specific expenditure the victim actually paid because of the crime. State v. Behnke, 203 Wis. 2d 43 (Ct. App. 1996); see also State v. Stowers, 177 Wis. 2d 798 (Ct. App. 1993), holding the section does not authorize restitution for non-pecuniary damages. “Special damages” has been construed to mean any readily ascertainable pecuniary expenditure paid out because of the crime. State v. Johnson, 2005 WI App 201.
Two further limits are worth knowing because they are commonly assumed the other way. Interest on a restitution award is not allowed. State v. Hufford, 186 Wis. 2d 461 (Ct. App. 1994). And the recipient must actually be a victim: an entity with no relationship on the record to the crime of conviction or to a read-in crime cannot collect. State v. Mattes, 175 Wis. 2d 572 (Ct. App. 1993). Law enforcement’s collateral expenses incurred in the ordinary course of its work are not restitution, because the agency is not a victim. State v. Storlie, 2002 WI App 163.
Causation is a real requirement, and it is litigable
Restitution does not follow automatically from a loss that happened somewhere near the crime. Before a court may order it, there must be a showing that the defendant’s criminal activity was a substantial factor in causing the victim’s pecuniary injury in a “but for” sense. State v. Johnson, 2005 WI App 201. A causal nexus between the crime and the disputed damage is required: the conduct must be the precipitating cause, and the harm must follow as a natural consequence. State v. Canady, 2000 WI App 87.
That is a genuine line, and cases turn on it. In a contractor-fraud prosecution, the court of appeals held that the poor quality of work actually performed under the contract was purely a civil wrong, and that the restitution statute could not be enlisted to remedy it. State v. Longmire, 2004 WI App 90. In an employee-theft case, the court struck items including the cost of recruiting and hiring a replacement, which flowed from the resignation rather than from the theft. State v. Holmgren, 229 Wis. 2d 358 (Ct. App. 1999). Contributory negligence, by contrast, is not a defense to restitution. State v. Knoll, 2000 WI App 135.
The claim submitted by a victim is a claim. It is not a finding.
How the amount is actually set
Section 973.20 (13) (c) governs the procedure, and it is more structured than most defendants realize. Before imposing sentence or ordering probation, the court must ask the district attorney what restitution the victim claims, and must give the defendant the opportunity to stipulate to that claim or to present evidence and argument on the statutory factors. If the defendant stipulates, or if the dispute can be fairly heard at sentencing, the court determines the amount then.
Otherwise the statute supplies four alternatives, and only four: order the undisputed amounts and direct the appropriate agency to file a proposed restitution order within 90 days; adjourn sentencing for up to 60 days pending resolution; with the defendant’s consent, refer the disputed issues to an arbitrator, whose determination is filed within 60 days; or refer them to a circuit court commissioner or other referee, who holds a hearing and submits proposed findings within 60 days, with the court determining the amount within 30 days after the report is filed. A court that invents its own procedure instead is reversed. State v. Krohn, 2002 WI App 96.
Those deadlines have been held directory, not mandatory, and an order entered outside them may stand where there was a valid reason for the delay and no prejudice. State v. Perry, 181 Wis. 2d 43 (Ct. App. 1993); State v. Johnson, 2002 WI App 166. There is a limit: where no valid reason appeared for a fourteen-year delay, the resulting prejudice deprived the court of authority to order restitution at all. State v. Ziegler, 2005 WI App 69.
The burdens of proof — and the silence that costs the most
Section 973.20 (14) splits the burden, and the split is the single most important thing in this article.
Under paragraph (a), the burden of demonstrating the amount of loss by a preponderance of the evidence is on the victim. Under paragraph (b), the burden of demonstrating the defendant’s financial resources, present and future earning ability, and the needs and earning ability of the defendant’s dependents is on the defendant. The defendant may assert any defense he could raise in a civil action for the loss sought to be compensated — though “any defense” has been read to mean defenses relating to the determination of the loss, and the civil statute of limitations does not apply. State v. Sweat, 208 Wis. 2d 409 (1997).
Paragraph (d) entitles all interested parties to be heard, to present evidence, and to cross-examine. The hearing may be informal; restitution hearings are not governed by the rules of evidence. State v. Pope, 107 Wis. 2d 726 (Ct. App. 1982).
Now the consequence of doing nothing. Where a defendant has received a restitution summary and does not object, the court may assume the amount is not in dispute and order it on that basis, without detailed findings. State v. Szarkowitz, 157 Wis. 2d 740 (Ct. App. 1990). Silence at the time restitution is ordered may be treated as a constructive stipulation to the restitution, including the amount. State v. Hopkins, 196 Wis. 2d 36 (Ct. App. 1995). And because ability to pay is the defendant’s burden, a defendant who offers no evidence on it gets an order entered without findings on it. Szarkowitz, above.
Ability to pay is not a rhetorical appeal made at the podium. It is a burden of proof with an evidentiary record behind it — pay stubs, tax returns, medical records, a household budget — and the time to build that record is before the hearing.
Ability to pay: what the court must weigh
Section 973.20 (13) (a) requires the court, in determining whether to order restitution and in what amount, to consider all of the following: the amount of loss suffered by any victim as a result of a crime considered at sentencing; the financial resources of the defendant; the present and future earning ability of the defendant; the needs and earning ability of the defendant’s dependents; and any other factors the court deems appropriate.
Two points follow. First, ability to pay bears on the amount, not merely the schedule — the statute places it in the provision governing whether and how much. Second, when a defendant does present evidence of ability to pay, the court is not authorized to defer adjusting the amount on that basis. State v. Loutsch, 2003 WI App 16. The question must be decided, not postponed.
Payment, apportionment, and the 5 percent surcharge
Under § 973.20 (10) (a), the court may require restitution to be paid immediately, within a specified period, or in specified installments — but where the defendant is placed on probation or sentenced to imprisonment, the specified period may not run past the end of probation, extended supervision, or parole. Paragraph (b) permits the Department of Corrections or the clerk of court to certify an unpaid amount to the Department of Revenue once payment is more than 30 days overdue, or where installment payments are delinquent, which is how restitution reaches a tax refund.
Section 973.20 (11) (a) directs payment to the Department for transfer to the victim, or to the clerk of court where the defendant is not on probation and not sentenced to prison, and imposes a restitution surcharge under ch. 814 equal to 5 percent of the total restitution, costs, attorney fees, court fees, fines, and surcharges ordered.
Where more than one defendant is ordered to pay the same victim, § 973.20 (7) permits the court to apportion liability between them or to specify joint and several liability. If damage results from a criminal episode in which the defendant played any part, he is jointly and severally liable for the amount. State v. Madlock, 230 Wis. 2d 324 (Ct. App. 1999). That is how a defendant with a small role in a group offense ends up facing the full figure.
And under § 973.20 (12) (b), payments are applied first to satisfy the ordered restitution in full, then to fines and surcharges under § 973.05, then to costs and fees under ch. 814, and last to reimburse the county or state for the cost of legal representation. Restitution is at the front of the line.
What happens if you cannot pay
Here the two halves of § 973.20 (1r) matter. Restitution ordered under the section is a condition of the probation, extended supervision, or parole being served. After supervision terminates — or where the defendant was never placed on supervision at all — the order is enforceable in the same manner as a judgment in a civil action by the victim named in it, or enforceable through the contempt procedures of ch. 785.
The end-of-probation mechanism is set out in § 973.09 (3) (b), and it is worth reading before the last year of a probation term rather than during it. At least 90 days before probation expires, the Department must notify the sentencing court, the district attorney, and anyone owed unpaid restitution of the status of payments. If payment has not been made as ordered, the court shall hold a probation review hearing before the expiration date, unless the probationer knowingly waives it — with the express acknowledgment that waiver may result in extension of probation or revocation. If the court does not extend probation, it must issue a judgment for the unpaid restitution and direct the clerk to docket it without fee, unless the victim already holds a civil judgment for the same damages. That judgment has the same force and effect as one entered under § 806.10.
So the realistic outcomes for unpaid restitution at the end of a probation term are: probation extended, or a docketed civil judgment. Neither is a discharge.
What inability to pay does not mean, as a matter of federal constitutional law, is automatic imprisonment. In Bearden v. Georgia, 461 U.S. 660 (1983), the United States Supreme Court held that a sentencing court may not revoke probation and imprison a defendant for failure to pay a fine or restitution without first inquiring into the reasons for non-payment; if the probationer did not willfully refuse to pay and made sufficient bona fide efforts to acquire the means to pay, the court must consider alternatives to imprisonment before resorting to it. The distinction the law draws is between the person who cannot pay and the person who will not. Establishing which side of that line a client is on is evidentiary work, and it is the whole ballgame at a review hearing.
Restitution survives a great deal — including bankruptcy
A restitution order is unaffected by bankruptcy proceedings. State v. Sweat, 202 Wis. 2d 366 (Ct. App. 1996). Federal law points the same direction from the other side: 11 U.S.C. § 1328 (a) (3) excepts from a Chapter 13 discharge any debt “for restitution, or a criminal fine, included in a sentence on the debtor’s conviction of a crime.” If you are weighing a bankruptcy filing while a criminal case is pending or a restitution order is outstanding, our article on which debts bankruptcy can and cannot erase covers the broader landscape — but restitution belongs firmly in the “cannot” column, and a bankruptcy plan built on the contrary assumption will fail.
Restitution also does not close the door on civil litigation. Under § 973.20 (8), an order does not limit or impair a victim’s right to sue and recover damages in a civil action; the fact that restitution was required or paid is not admissible in that action and has no legal effect on its merits; and any restitution made by payment or community service is set off against a civil judgment, with the civil court holding a separate hearing to determine the validity and amount of the setoff.
Where a victim has received an award from the state crime victim compensation program under subch. I of ch. 949, § 973.20 (9) subrogates the state to the victim’s rights to restitution, subordinate to the claims of victims who suffered a loss.
Where the leverage is
Restitution is frequently treated as the housekeeping at the end of a sentencing hearing, disposed of in ninety seconds after the substantive argument is over. That is precisely backwards for a defendant who will be living with the number for years.
The points of leverage are specific and early: what is read in and what is dismissed outright; whether the claimed losses are special damages traceable to the offense or general damages dressed up; whether the causal chain the victim asserts actually holds; whether liability among co-defendants is apportioned or joint and several; and whether a real evidentiary record on ability to pay is put before the court while the statute still requires the court to weigh it. Each of those is a decision point. Each of them closes.
The one thing that is never recoverable is the objection that was not made. Understanding how the number is set is also worth reading alongside how Wisconsin sentencing works, since restitution is imposed in the same breath as the sentence itself.
Talk to a New Berlin criminal defense attorney
Carson Law Office handles criminal defense matters for clients throughout New Berlin, Waukesha County, Milwaukee, West Allis, Wauwatosa, and the surrounding communities. If you are facing a restitution claim — at sentencing, at a disputed-amount hearing, or at an end-of-probation review — call (262) 860-8932 or contact us here.
This article provides general information about Wisconsin restitution law and is not legal advice. Reading it does not create an attorney-client relationship. Statutes and case law change, and what restitution is available in any particular case depends on the offense, the record, and the evidence presented; for advice about your own situation, speak with a licensed Wisconsin attorney.