Michigan Restitution: How Courts Calculate What You Owe and How to Fight It

Of everything a Michigan criminal sentence contains, restitution is the part that lasts longest and gets contested least. Jail ends. Probation ends. Restitution becomes a civil judgment that survives both, and in most circumstances it survives bankruptcy too.

It is also frequently calculated wrong, and almost nobody challenges it.

The Legal Framework

Michigan's Crime Victim's Rights Act, MCL 780.766, and MCL 769.1a require a sentencing court to order full restitution to any victim of the defendant's course of conduct.

Article 1, Section 24 of the Michigan Constitution gives crime victims a constitutional right to restitution. The obligation is mandatory — a court cannot simply decline to order it.

What a court can do is determine the correct amount. That is where the entire fight lives.

What Restitution Covers

• Value of property lost, damaged, or destroyed,
• Medical expenses and rehabilitation costs,
• Lost wages and income,
• Counseling and psychological treatment,
• Funeral and burial expenses,
• Costs of participating in the prosecution, in specified circumstances,
• Homemaking and childcare expenses in some cases.

It does not cover pain and suffering. That is a civil damages concept, and it is one of the more common overreaches in proposed restitution figures.

Course of Conduct

This phrase does enormous work. Michigan courts may order restitution for losses arising from the defendant's course of conduct — which can reach beyond the specific charge of conviction.

Practically, that means a defendant who pleads to one count may face restitution covering conduct in dismissed counts, or uncharged conduct within the same course. This is well-established in Michigan law and it surprises defendants constantly, particularly those who took a plea believing it limited their exposure.

It also means the scope of “course of conduct” is itself litigable, and it should be addressed as part of any plea negotiation rather than discovered at sentencing.

How the Number Gets Set

The typical sequence:

1. The victim submits a loss statement, often through the prosecutor's victim advocate,
2. The figure is included in the presentence investigation report,
3. The court adopts it at sentencing unless it is disputed.

That third step is the problem. Absent an objection, the number goes in as submitted — unexamined, unsupported, and permanent.

The Right to a Restitution Hearing

Under MCL 780.767, when the amount is disputed, the court must hold a hearing.

At that hearing:

• The prosecution bears the burden of proving the amount by a preponderance of the evidence,
• The defense may cross-examine the victim and any supporting witnesses,
• The defense may present contrary evidence — appraisals, invoices, expert testimony,
• The court must make a factual finding supported by the record.

A bare assertion of loss is not evidence. Michigan appellate courts have reversed restitution orders that rested on unsupported figures.

The objection has to be made. An amount accepted at sentencing is generally waived.

Where the Numbers Go Wrong

Replacement cost versus actual value

Victims routinely submit what it would cost to buy the item new. Michigan generally looks to the value of the property at the time of the offense — which for a five-year-old laptop, a used vehicle, or worn tools is dramatically lower.

Insurance

Where an insurer has paid, restitution is owed to the insurer for what it paid — not to the victim a second time for the same loss. Double recovery shows up more often than it should.

Losses not caused by the defendant

In embezzlement and theft cases especially, employers bundle in inventory shrinkage, accounting discrepancies, and losses from other sources. In property damage cases, victims include pre-existing damage.

Betterment

Repairs that leave the victim better off than before — a new roof replacing a damaged old one — require adjustment.

Investigation and audit costs

Employers frequently claim the cost of the forensic audit that discovered the loss. Whether that is recoverable is contestable.

Speculative lost profits

Business victims sometimes claim revenue they believe they would have earned. That is generally too speculative.

Pain and suffering

Not recoverable as restitution, though it appears in submitted figures regularly.

Ability to Pay

An important distinction that gets confused constantly:

• The court cannot reduce the restitution amount based on inability to pay. The amount is what the victim lost.
• The court can and must consider ability to pay in setting the payment schedule.

Under Bearden v. Georgia and Michigan law, a court cannot revoke probation and incarcerate a person solely because they are too poor to pay. The court must inquire into whether the failure was willful and consider alternatives.

That protection is real, and it is raised far less often than it should be. Documented income and expenses, presented properly at a violation hearing, changes outcomes.

Joint and Several Liability

Where multiple defendants caused a single loss, Michigan permits joint and several liability — each defendant can be responsible for the full amount, with credit for what co-defendants pay.

The practical consequence: the defendant with a job pays it all while co-defendants pay nothing. Apportionment arguments are worth making.

How Long It Lasts

• Restitution becomes enforceable as a civil judgment,
• It survives the end of probation and the end of any sentence,
• It is generally not dischargeable in bankruptcy,
• It can be collected through wage garnishment, tax refund interception, and property liens,
• Unpaid restitution can block license reinstatement and other relief.

An unchallenged inflated figure is a debt someone carries for decades.

Restitution and Expungement

Worth knowing for anyone looking ahead: outstanding restitution can complicate a later petition to set aside a conviction under MCL 780.621. Courts consider whether obligations have been satisfied. Getting the number right at the front end matters years later.

Paying Early Helps

Once the correct amount is established, paying it — or beginning to pay it — before sentencing is one of the most persuasive things a defendant can do. It supports:

• Reduced jail exposure,
• Delayed sentencing under MCL 771.1 with dismissal or reduction on completion,
• HYTA consideration for defendants 17 to 25,
• A favorable sentencing posture generally.

Judges respond to restitution already paid in a way they do not respond to promises.

The sequence matters, though: establish the correct number first, then pay it. Paying an inflated figure to look cooperative locks it in.

What to Do

• Get the loss documentation in discovery. Not the summary figure — the underlying invoices, receipts, and records.
• Review the presentence report carefully before sentencing. The restitution figure is in it.
• Object on the record if the amount is unsupported. Silence is waiver.
• Request a restitution hearing where the number is genuinely disputed.
• Get independent valuation for property — appraisals, comparable sales, depreciation schedules.
• Document your finances for the payment schedule determination.
• Address restitution scope during plea negotiations, before it is too late.

Where These Hearings Happen

Restitution is determined at sentencing in the court handling the case — the 35th District Court in Plymouth for misdemeanors from Plymouth, Plymouth Township, Canton, and Northville, or Wayne County Circuit Court for felonies.

The Number Is Not Automatic

Restitution is mandatory. The amount is not. It is a factual finding that the prosecution has to support, and in a meaningful share of cases the figure submitted does not survive examination.

Call Boria Law at (734) 453-7806 before sentencing if a restitution figure has been proposed in your case. Attorney Aaron J. Boria contests restitution amounts in the 35th District Court and Wayne County Circuit Court — because that number is the part you carry longest.