8.12Restitution¹

Victims have a constitutional right to restitution. Const 1963, art 1, § 24. Additionally, restitution is mandatory under the Crime Victim’s Rights Act (CVRA), MCL 780.751 et seq., and Michigan’s general restitution statute, MCL 769.1a. See People v Garrison, 495 Mich 362, 365 (2014). The sentencing court must, on the record, “order that the defendant make full restitution as required by law to any victim of the defendant’s course of conduct that gives rise to the conviction, or to that victim’s estate.” MCR 6.425(D)(1)(f); see also MCL 769.1a(2); MCL 780.766(2) (felony article); MCL 780.794(2) (juvenile article); MCL 780.826(2) (serious misdemeanor article).² “[B]oth [the CVRA³ and MCL 769.1a(2)] impose a duty on sentencing courts to order defendants to pay restitution that is maximal and complete.” Garrison, 495 Mich at 368 (noting that “the plain meaning of the word ‘full’ is ‘complete; entire; maximum’”) (citation omitted).

During sentencing, the court is required to specifically “order the dollar amount of restitution that the defendant must pay to make full restitution as required by law to any victim of the defendant’s course of conduct that gives rise to the conviction, or to that victim’s estate.” MCR 6.425(D)(1)(f). See also MCR 6.610(G)(1)(e) (including the same requirement for proceedings in district court).⁴

“Any dispute as to the proper amount or type of restitution shall be resolved by the court by a preponderance of the evidence. The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense shall be on the prosecuting attorney.” MCR 6.425(D)(2)(b). See also MCR 6.610(G)(1)(e) (including the same requirement for proceedings in district court).

Because restitution is mandatory, defendants are on notice that it will be part of their sentences. People v Ronowski, 222 Mich App 58, 61 (1997). Restitution is not open to negotiation during the plea-bargaining or sentence-bargaining process. Id. 

MCR 6.430 governs postjudgment motions to amend restitution in both felony and misdemeanor cases. See MCR 6.001(A)-(B). For a discussion of MCR 6.430, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 3, Chapter 1.

“Restitution imposed under MCL 780.766 and MCL 769.1a is not criminal punishment, and so its imposition on defendant does not violate constitutional ex post facto protections.” People v Neilly, ___ Mich ___, ___ (2024). In this case, “during defendant’s resentencing proceedings, [the trial court] ordered defendant to pay restitution pursuant to the current restitution statutes rather than the statutes in effect at the time of defendant’s crimes.” Id. at ___. “Defendant appealed the restitution order in the Court of Appeals, arguing that it violated the Ex Post Facto Clauses of the United States and Michigan Constitutions.” Id. at ___. “Specifically defendant argued that because restitution was ordered under the current restitution statutes rather than the previous version of the restitution statutes that were in effect when [defendant] committed his crimes, the trial court had improperly increased the punishment for his crimes.” Id. at ___.

“[T]he former restitution statutes provided that the imposition of restitution was discretionary, rather than mandatory, as the restitution statutes now provide.” Id. at ___. “MCL 769.1a(5) provides that the trial court ‘may require’ that the defendant pay the ‘cost of actual funeral and related services.’” Id. at ___ n 4. “MCL 780.766(4), on the other hand, provides that when a victim is injured, the trial court ‘shall require’ that the defendant pay one or more, as applicable, of the enumerated costs and losses, of which the payment of funeral costs is one.” Id. at ___ n 4. In determining whether the ordered restitution was a criminal punishment or a civil remedy, the Court considered whether the statute was intended by the Legislature to be a criminal punishment. Id. at ____. If so, “there is no further inquiry because retroactive application of the statute would violate ex post facto prohibitions.” Id. at ___. “If a statute imposes a disability for the purpose of reprimanding the wrongdoer, the Legislature likely intended the statute as criminal punishment.” Id. at ___. “On the other hand, if a statute imposes a disability to further a legitimate governmental purpose, the Legislature likely intended the statute as a civil remedy.” Id. at ___.

Here, “restitution under MCL 769.1a and MCL 780.766 is tailored to the harm suffered by the victim rather than the defendant’s conviction or judgment of sentence.” Neilly, ___ Mich at ___. “Accordingly, two defendants who have committed a crime of the same severity may be ordered to pay restitution in wholly different amounts because of the differences in actual costs to their victims.” Id. at___. “Conversely, two defendants who have committed crimes of different severity may be ordered to pay restitution in a similar amount because their victims suffered similar actual costs despite the differing severity of the crimes.” Id. at ___. “That the amount of restitution is not dependent on the severity of the crime demonstrates that the intent of the statutes is to provide a civil remedy for victims’ injuries rather than to provide a criminal punishment for defendants.” Id. at ___.