Can You Go to Jail for Failing to Pay Restitution?

In most cases, you cannot be sent to prison for failing to pay a debt. One exception is if you are required to make financial restitution as a result of a criminal conviction. For example, it is common for courts to require defendants convicted of financial fraud to pay restitution to their victims. If the defendant fails to make restitution, and the trial court determines that failure was “willful”–or the defendant “failed to make bona fide efforts” to pay–that is grounds for revoking probation and sentencing the defendant to prison.

Judge Refused to Let Defendant Explain Inability to Pay

Before taking such drastic action, however, the trial court must “inquire into the reasons for the failure to pay.” This is a matter of basic due process. A judge cannot simply admonish a defendant that they will go to jail if they do not pay.

The United States 11th Circuit Court of Appeals recently reaffirmed this principle in a case, United States v. Goldstein, involving a defendant previously convicted of wire fraud in an Illinois federal court. After serving a 33-month federal prison sentence, the defendant was released and required to serve an additional 3 years of federal probation. The trial court also ordered the defendant to pay $245,000 in restitution, and while on probation, he had to pay at least 10 percent of his monthly income towards this amount.

About 2 years into his supervised release, the defendant relocated to Florida. Shortly thereafter, the United States Probation Office alleged the defendant violated the terms of his supervised release by failing to make any restitution payments between January and October 2023. The defendant admitted to this and another, unrelated probation violation.

Although the Probation Office and the United States Attorney agreed to continue the defendant’s probation, the trial court judge decided to make an example out of the defendant. During sentencing, the judge asked the defendant with respect to the unpaid restitution: “You can’t pay it? Or you choose not to pay it?” The judge did not allow the defendant to respond. At a follow-up hearing, the judge complained that she had “been burnt” by other defendants who did not pay their restitution. The court revoked the defendant’s probation and ordered him to return to prison for four months.

On appeal, the 11th Circuit held the trial court violated the defendant’s constitutional right to due process. Indeed, the judge “plainly erred by failing to make the appropriate inquiry” required by law before sending the defendant to prison. While the district court focused on the fact the defendant had failed to make restitution, it never bothered to ask the defendant why. The 11th Circuit said that was an unacceptable judicial error that “seriously affected the fairness and integrity of judicial proceedings.” The Court of Appeals therefore returned the case to the district judge for a new sentencing hearing.

Contact Joshi Law Today

No matter what crime you have been accused–or convicted–of, judges must still follow the law and uphold your constitutional right to a fair trial. An experienced Orlando white collar criminal defense lawyer can help protect you. Call the Joshi Law Firm, PA, today at 844-GO-JOSHI or contact us online to schedule a free initial consultation.

Source:

scholar.google.com/scholar_case?case=6547215467866059397