What Does It Mean to Sue for Restitution? Criminal vs. Civil

Suing for restitution usually means one of two things, and the distinction decides how you proceed. If a crime caused your loss, “restitution” is something a criminal court orders at sentencing after the prosecutor wins a conviction; you don’t file that case, and it only covers direct economic losses. If you want to control the case yourself and pursue a wider range of damages, including pain and suffering, you file a civil lawsuit. You can pursue both for the same incident, but you cannot collect twice for the same loss.¹

Criminal Restitution vs. a Civil Lawsuit

Criminal restitution is ordered by the judge as part of the defendant’s sentence. The Mandatory Victims Restitution Act requires federal judges to order full restitution for crimes of violence, property offenses, fraud, and other covered offenses, regardless of whether the defendant can afford to pay.² A court cannot refuse to issue a restitution order because of the defendant’s financial situation.³ Every state has its own framework too, and most require restitution for at least some categories of crime.

The scope is narrow. Criminal restitution covers only direct economic losses: stolen or damaged property, medical bills, lost wages, and funeral costs. Pain and suffering, emotional distress, and punitive damages are not available through this route.

A civil lawsuit flips the control and the scope. You file the case (or your attorney does), name the defendant, and ask for both economic and non-economic damages. The trade-off is that you drive the case, and you may need to pay legal costs upfront or through a contingency fee.

Running both at once is legal and common. Federal law prevents double recovery by reducing any civil award by the amount already collected through criminal restitution for the same loss, with the defendant carrying the burden of proving the offset.¹

What Losses Each Path Covers

Federal restitution law spells out specific categories, and most state systems follow a similar structure.

For property that was stolen and not recovered, or damaged beyond repair, the order covers the greater of the property’s value on the date of loss or on the date of sentencing.² If part of the property is recovered, the amount is reduced accordingly. Repairable property is measured by the cost of repairs.

Medical costs include physical therapy, psychiatric care, rehabilitation, and prescription medication.² Courts in many jurisdictions have also ordered restitution for projected future medical costs when supported by firm evidence.

Lost income is reimbursed when injuries kept you from work, and also when you missed work to participate in the investigation, attend court, or arrange child care and transportation to do so. When a crime results in death, the family can receive restitution for funeral and related costs.²

A civil case can include all of those losses plus the categories criminal restitution leaves out: pain and suffering, emotional distress, loss of enjoyment of life, and in some cases punitive damages.

How Each Case Starts

Criminal Restitution

You don’t file anything. After a conviction, a probation officer gathers financial loss information from the investigating agent, the prosecutor, and you. You’ll typically complete a Victim Impact Statement describing your losses.⁴ If your losses aren’t fully calculated by ten days before sentencing, the court can set a later date up to 90 days after sentencing. If you discover additional losses after the order is entered, you have 60 days from the discovery to petition for an amended order, with good cause shown.¹

If the defendant disputes the amount, the judge resolves it by a preponderance-of-the-evidence standard, and the government carries the burden of demonstrating your losses.¹ Documentation is what wins this.

A Civil Suit

You file a complaint describing what happened, how the defendant caused the harm, and the damages you want. The complaint then has to be formally served on the defendant.⁵ Filing requires a fee: $405 in federal district court, with state court fees ranging from under $100 for small claims to several hundred for general civil cases. If you can’t afford the fee, you can request to proceed without paying it.

Small claims court is worth considering for smaller losses. The cap ranges from $2,500 to $25,000 depending on the state, with $5,000 or $10,000 being most common. Procedures are simpler and fees are lower, but most small claims courts only award money damages, and in many jurisdictions you cannot have an attorney represent you at the hearing.

Every civil claim has a filing deadline. For personal injury, most states give you two or three years from the date of injury; a few allow as little as one year, others up to six. Property damage claims often follow a different timeline. Miss the deadline and the court dismisses the case regardless of its merit. Check your state’s statute of limitations early.

Documentation You Need Either Way

Judges don’t take your word on dollar amounts, and defendants challenge any number they can. For property losses, keep receipts showing original purchase price, professional repair estimates, and comparable listings to establish fair market value. Photographs help but rarely stand alone.

For medical expenses, collect itemized bills from every provider, pharmacy receipts, and invoices for therapy and rehabilitation. If you expect ongoing costs, get a written estimate or letter from your treating physician describing anticipated treatment and projected cost.

For lost income, get a letter from your employer with your pay rate, the dates missed, and total wages lost. Pay stubs from before and after the incident strengthen the claim. Self-employed victims need tax returns and financial records showing the disruption.

For out-of-pocket expenses, keep receipts for child care, transportation to medical appointments or court, temporary housing, and anything else directly tied to the offense. In criminal cases, the probation officer provides an affidavit form to submit your losses.¹

Collecting the Money

A court order is not a check. This is where expectations usually collide with reality.

If You Have a Restitution Order

Once entered, the judge sets a payment schedule based on the defendant’s resources, projected income, and obligations, and can order a lump sum, installments, or in-kind payments.¹ If the defendant truly cannot pay anything, the court can order nominal periodic payments that keep the obligation alive.

Restitution payments to you take priority over fines owed to the government. Federal law prohibits a judge from imposing a fine that would impair the defendant’s ability to pay restitution.⁶ A federal restitution order automatically creates a lien against all of the defendant’s property, lasting 20 years from the date of judgment plus any time the defendant spends incarcerated. The government can enforce it using the same tools available for civil judgments, including wage garnishment subject to the Consumer Credit Protection Act’s limits.⁷

The government can also intercept federal payments owed to the defendant, including tax refunds, through the Treasury Offset Program.⁸ Failure to pay as ordered can lead to probation or parole revocation, though courts generally require proof that the failure was willful rather than caused by genuine inability to pay.⁹

If You Have a Civil Judgment

Collection falls entirely on you. If the defendant doesn’t pay voluntarily, you enforce the judgment yourself. Federal law caps wage garnishment for ordinary judgments at 25% of disposable earnings for any workweek, or the amount by which weekly earnings exceed 30 times the federal minimum wage, whichever is less.¹⁰ You can also place a lien on real estate the defendant owns, which prevents them from selling or refinancing without paying you first.

Unpaid federal civil judgments accrue interest from the date of entry, with the rate tied to the weekly average one-year Treasury yield for the week before judgment.¹¹ State courts set their own post-judgment rates. Civil judgments typically remain enforceable for 10 to 20 years depending on the jurisdiction, and most states allow renewal before expiration. Even if the defendant has nothing now, a long-lived judgment gives you a window if their situation changes.

When the Defendant Can’t Pay

Most writing on this subject skips the part that matters most. The Department of Justice itself warns victims that “the chance of full recovery is very low” and that “many defendants will not have sufficient assets to repay their victims.”⁴ A Government Accountability Office report found that at the end of fiscal year 2016, $110 billion in federal restitution remained outstanding, with $100 billion of that identified as uncollectible because the offenders could not pay. Across all federal restitution debts, the government collected at least some payment on only one-third of cases and the full amount on just 5%.¹²

An unpaid restitution order is still enforceable for 20 years plus the defendant’s incarceration time.⁷ The Financial Litigation Unit within each U.S. Attorney’s Office monitors the defendant’s finances and pursues collection when assets or income appear.⁴ Expect small partial payments over years rather than a single check.

In civil cases, a defendant with no income, no bank accounts, and no property is “judgment-proof.” The judgment stays valid, so if they later inherit money, land a well-paying job, or buy real estate, you can pursue collection then. The DOJ encourages victims to consult their own attorney about civil enforcement options that complement the government’s efforts.⁴

Taxes on What You Recover

Whether you owe taxes on what you recover depends on what the payment is compensating. Restitution or damages received because of a physical injury or physical sickness are excluded from gross income, including any portion allocated to lost wages, as long as the underlying claim was for the physical harm itself.¹³ The IRS has upheld this exclusion even for the lost-wage portion of a personal physical injury settlement.¹⁴

Punitive damages are generally taxable regardless of the type of injury, with a narrow exception for wrongful death cases in states where punitive damages are the only remedy available. Emotional distress damages not tied to a physical injury are also taxable, except to the extent they reimburse actual medical expenses you paid for treatment of that distress.¹³

Restitution for property loss or theft is not income; you’re being made whole. But if you claimed a theft loss deduction on a prior return and later received restitution for that same loss, you may need to report the restitution as income in the year received, up to the amount of the earlier deduction. A tax professional can walk you through the specifics.

What Legal Representation Costs

Criminal restitution costs you nothing in legal fees because the prosecutor handles the case. Your role is limited to providing documentation and cooperating with the probation officer.

A civil lawsuit is different. Most personal injury attorneys work on contingency, taking a percentage of your recovery instead of charging upfront. The standard rate is roughly one-third if the case resolves before litigation and closer to 40% if it goes to trial. If you lose, you owe no attorney fee. Case costs like filing fees, expert witnesses, and deposition transcripts are typically advanced by the firm and then deducted from your recovery, which can add up to thousands of dollars in complex cases.

For straightforward property claims or smaller amounts, representing yourself may make sense, particularly in small claims court where the process is designed for people without attorneys. Above small claims thresholds, the procedural complexity of civil litigation makes professional help worth the cost for most people.

1
Office of the Law Revision Counsel. 18 USC 3664 – Procedure for Issuance and Enforcement of Order of Restitution
2
Office of the Law Revision Counsel. 18 USC 3663A – Mandatory Restitution to Victims of Certain Crimes
3
Office of the Law Revision Counsel. 18 USC 2327 – Mandatory Restitution
4
Department of Justice: Criminal Division. Restitution Process
5
United States Courts. Civil Cases
6
Office of the Law Revision Counsel. 18 USC 3572 – Imposition of a Sentence of Fine and Related Matters
7
GovInfo. 18 USC 3613 – Civil Remedies for Satisfaction of an Unpaid Fine
8
Office of the Law Revision Counsel. 31 USC 3720A – Reduction of Tax Refund by Amount of Debt
9
Office for Victims of Crime (OVC). Restitution – Making It Work, Legal Series Bulletin 5
10
Office of the Law Revision Counsel. 15 USC 1673 – Restriction on Garnishment
11
Office of the Law Revision Counsel. 28 USC 1961 – Interest
12
Government Accountability Office. Federal Criminal Restitution – Most Debt Is Outstanding and Oversight of Collections Could Be Improved
13
Office of the Law Revision Counsel. 26 USC 104 – Compensation for Injuries or Sickness
14
Internal Revenue Service. Tax Implications of Settlements and Judgments