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Pursuing restitution order when all else fails
ROBERT G. MARKOFF
Law Bulletin columnist
Published: March 30, 2017
Defendants in criminal prosecutions are sometimes ordered to pay restitution to the victims of their crimes.
Restitution orders are pursued by the county state’s attorney as part of the criminal prosecution. The orders usually require the defendants to pay restitution to the state’s attorney’s office which then sends it on to the victim.
The state’s attorney will generally pursue enforcement of the orders from sentencing through incarceration and probation as part of an active case.
However, once probation ends and the case is closed, the state’s attorney’s office, with limited resources and many new cases, ends its enforcement efforts if payment plans are not kept.
State’s attorneys represent the People of the State. They do not represent crime victims as private citizens. They help the best they can, but there are limits.
What is a crime victim to do when the enforcement of the restitution order is ended? May they hire a private attorney to continue the enforcement?
A crime victim may hire a private attorney to continue enforcement efforts. The law states that restitution orders are civil judgments and may be enforced as such.
The next question: Where does the enforcement take place? A private attorney has no standing to enter a criminal case or courtroom to enforce a restitution order.
To proceed with the enforcement of the restitution order, the enforcement should be brought in the circuit court’s Civil Division. This is accomplished by filing a certified copy of the restitution order as a new case filing with the circuit clerk’s office. File the order in the Law Division or a municipal district depending on the original amount of the restitution order.
The restitution order will receive a new civil case number. Consider the process to be similar to filing a judgment order from a sister Illinois county with minor differences.
There is no Cook County Circuit Court rule regarding the process of enforcing a judgment from one of its divisions in another. Unless a new rule directs otherwise, the certified copy of the restitution order should be filed along with a petition requesting that it be spread upon the Civil Division’s docket as a judgment.
A motion with notice to the defendant and state’s attorney should then be presented. If this were a filing from a sister county, no petition, notice or court order would be required to begin enforcement proceedings.
The order to be entered should direct the circuit clerk to spread the restitution order of record as a judgment entered on the original date it was entered. The amount of the judgment will be the original amount of the restitution order even though payments may have been made.
The court is not entering a new judgment. Statutory interest and credits to the judgment are set forth in enforcements.
It is not simple or easy to recover funds for crime victims from the perpetrators. However, their hopes of recovery need not be ended when the criminal case is closed.
Robert G. Markoff is name partner of Markoff Law LLC, a full-service creditors’ rights and debt collection law firm.