What to Do If You Can’t Pay a Restitution Amount
If you are ordered to pay restitution as part of your sentence but find that you simply cannot afford the amount, there are steps you can take to address the situation. In Kansas, you can pursue two main approaches:
1. Petition the Court That the Restitution Amount Is Unworkable
Under Kansas law, if the payment of restitution imposes a significant financial hardship, you may petition the court to either reduce the amount or modify the payment plan. This argument is referred to as “unworkability,” and it is your responsibility as the defendant to prove that paying the restitution amount is not feasible.
Legal Basis: Kansas Statute (K.S.A. 21-6604(d)) allows you to petition the court to waive or reduce the restitution amount if you can demonstrate that the payment imposes a "manifest hardship" on you or your immediate family.
Compelling Circumstances: According to K.S.A. 2017 Supp. 21-6604(b)(1), the court must order restitution unless there are compelling circumstances that make the plan unworkable. As the defendant, you carry the burden of proving that such circumstances exist.
Court Considerations: The court will evaluate your financial situation to determine whether paying the restitution is unreasonable. If the court finds that payment would cause extreme financial hardship, it has the discretion to reduce the amount or modify the payment terms.
2. Challenge the Restitution Amount on Grounds That It Is Unreliable or Unsupported by Evidence
Another approach is to argue that the amount of restitution ordered by the court is incorrect or not supported by sufficient evidence. You can challenge the State’s evidence that was presented to determine the restitution amount.
Legal Standard: The method for determining restitution is within the discretion of the trial court, but the restitution amount must be based on reliable evidence. The Kansas Court of Appeals has stated that the amount must be supported by "substantial and competent evidence" (State v. Rhodes, 77 P.3d 502 (Kan. Ct. App. 2003)).
Fair Market Value Standard: If restitution involves property, the typical measure of damages is the “fair market value” of the damaged or lost item (State v. Baxter, 118 P.3d 1291 (Kan. Ct. App. 2005)). If the restitution exceeds the fair market value, it could be considered an abuse of discretion.
Challenge Unreliable Evidence: If the evidence presented by the State to determine restitution is unreliable, inaccurate, or inflated, you can argue that the trial court abused its discretion by relying on this evidence. For instance, in property crimes, the court cannot award restitution that exceeds the actual loss suffered by the victim (State v. Chambers, 138 P.3d 405 (Kan. Ct. App. 2006)).
Restitution Standard and Abuse of Discretion
When a defendant challenges the amount of restitution or the way it is imposed, the appellate court will review the trial court’s decision under an "abuse of discretion" standard. This means the appellate court looks at whether:
No Reasonable Person Would Take the View of the Trial Court: The restitution order is considered unreasonable if no other judge would have made the same decision (State v. Hinckley, 777 P.2d 857 (Kan. Ct. App. 1989)).
The Decision Was Based on an Error of Law or Fact: If the trial court made a legal error in determining the restitution or based the order on incorrect facts, it may be overturned (State v. Marshall, 362 P.3d 587 (Kan. 2015)).
There Is Insufficient Evidence to Support the Restitution Order: If the evidence presented does not adequately justify the restitution amount, you can challenge it as lacking a substantial evidentiary basis (State v. Schmitter, 2010 WL 445915 (Kan. Ct. App. 2010)).
Practical Steps to Address Unpayable Restitution
Gather Financial Evidence: If you petition the court for unworkability, be prepared to present detailed evidence of your financial situation, including income, expenses, debts, and any other factors affecting your ability to pay.
Review the Restitution Calculation: Examine the restitution order carefully. If it appears excessive or based on incorrect information, such as inflated property values or speculative estimates, challenge the accuracy of the State's evidence.
Consult Your Attorney: Work with your attorney to prepare a motion to the court, whether you're arguing that the restitution is unworkable or challenging the reliability of the evidence used to determine the amount.
Modify the Payment Plan: If the court doesn’t waive the restitution, it may still agree to modify the payment plan to make it more manageable for you. This could involve extending the payment timeline or reducing the monthly payment amount.
Conclusion
If you're unable to pay the restitution amount ordered by the court, you have the option to petition the court to show that the amount is unworkable due to financial hardship or to challenge the restitution as unsupported by reliable evidence. These legal remedies allow you to seek adjustments to the restitution order, potentially lowering the financial burden while ensuring compliance with the court’s expectations.