What’s the Difference Between Compensation and Restitution?

By Michael GrossmanJanuary 31, 2017Reading Time: 8 minutes

A common question we receive when someone calls us after they or a loved one has been involved in an accident is, "Won't the courts make the person who hurt me pay restitution?" As with many questions in the law, the answer to that question can be complex, because the law permits two different avenues for victims to receive recompense for their injuries. These are known as restitution in criminal cases and compensation in civil law. While the words may sound the same, they apply in different situations and are pursued in different ways.

One of the things that makes law so daunting to those who aren't familiar with it is the fundamental contradiction of what the law is trying to accomplish and its means for accomplishing it. In order for people to feel that laws are just and fairly applied, the law has to be clear and easy to understand. However, in order to communicate laws, the only vehicle we have available is written and spoken language, which by its very nature is imprecise. Quite simply, words are the root of many a legal evil.

Words are malleable instruments by their very nature. Meanings can be overlapping or ambiguous. How are we supposed to arrive at clear and easy to understand rules that we all have to live by when the fundamental building block is so imperfect?

It is a common perception that lawyers spend a lot of time arguing over minutiae and seemingly mundane details. Sometimes, these arguments hinge on the meaning of a single word or phrase. While to laymen these may seem like silly arguments, without a clear understanding of the words that laws are built upon, there are situations where it's unclear what duties we owe to one another.

While some controversies surround multiple interpretations of the a given word or phrase in the law, it can be equally problematic when two similar words mean markedly different things. A great example of this concept is the distinction between restitution and compensation.

If you think that those two words are interchangeable and pretty much mean the same thing, you're not alone. I've been guilty of writing restitution numerous times in various blog posts when what I actually meant was compensation. While it may seem like I'm making something out of nothing, confusing these two terms can have disastrous consequences for those who have been injured or lost a loved one when someone negligently breaks the law.

Does Restitution Properly Compensate Victims?

Restitution can only be ordered by a judge after a defendant is convicted of a crime, whereas compensation is awarded by a jury when a defendant is determined to have acted negligently caused harm to someone. The source of the negligence can either be a criminal law that was violated, or a duty laid out in a statute or the common law.

While this might not seem like a big deal, this confusion can often foster myths about the legal system that leave victims out in the cold. Over the years, we have come across numerous victims who have lost relatives in drunk driving accidents, truck accidents, and numerous other types of calamities where the perpetrator was charged with a crime. A surprising number of these folks have been under the impression that they don't need to retain a personal injury attorney because the court will order the wrong-doer to pay restitution. What these folks don't realize is the limits of restitution.

First, in Texas, restitution can only cover actual economic losses. These generally fall into three categories, medical bills, lost income, and property. Courts cannot consider non-economic injuries such as mental anguish, loss of consortium, or pain and suffering. Another problem with restitution is that the amounts are up to a judges discretion and based upon victims impact statements. Sadly, most people greatly underestimate their losses by not taking into account future lost income and future medical expenses.

If that weren't enough, there are many situations, such as minor traffic offenses that lead to catastrophic results, where judges may be hesitant to impose significant restitution. Add to that, the fact that the criminal process is by no means swift, by the time many victims realize that restitution will not make them whole, it becomes more difficult to find an attorney to help them obtain compensation through the civil court system.

I came across a case in the news the other day that seems to fit the pattern for the type of case where restitution will not provide justice for family members. According to media reports, a commercial truck a ran a stop sign at the intersection of FM 829 and County Road 3100 in Martin County, Texas. Normally this wouldn't be newsworthy, but after running this stop sign, the truck collided with a passenger vehicle driven by Christopher P. Cortez, who died as a result of the accident.

In Texas, running a stop sign is punishable by a maximum fine of $200. It is doubtful the there would be a victim impact statement for such a minor violation and equally unlikely that a judge would order restitution. In such a situation, waiting for the outcome of the criminal proceedings costs valuable time that can spent investigating the accident by an outside party and gathering evidence for use in a civil action. While restitution might make sense for victims of robbery, theft, and fraud, for families who've lost a loved one due to a "minor" traffic violation, like the family of Christopher P. Cortez, restitution is probably a non-starter.

Perhaps the biggest obstacle to obtaining restitution is the higher burden of proof in criminal cases. As many people are familiar with, a conviction in a criminal case requires that the government's case be proved beyond a reasonable doubt. Without a conviction, victims have no hope of obtaining restitution.

In short, the inability to recover all damages, a focus on punishment, the fact that the victim doesn't have an actual representative in the proceedings, the whims of a judge, and the higher burden of proof all conspire to ensure that victims rarely receive full compensation through criminal restitution.

When Pursuing Compensation Is a Better Way

As mentioned before, civil cases offer victims the chance to obtain compensation, not restitution. The difference between the two is stark. Whereas obtaining restitution is almost completely dependent on factors outside of a victim's control, such as whether the nature of the offense, the effectiveness of the prosecution, and the disposition of the judge in the case, victims have much greater control when they seek to pursue compensation through a lawsuit.

First, those who have been wronged or their family members select the attorney who works on their behalf. This may not sound like much, but judges and prosecutors have their own agenda's that don't always overlap with the victims' interests. A personal injury attorney's sole task is to pursue compensation for their clients. This means that while a judge may have to consider the fairness of a sentence, balancing the needs for rehabilitating the perpetrator versus punishment, personal injury attorneys have no such conflict.

Further, seeking compensation is far more democratic. Rather than relying on the wisdom of a single individual (the judge) during the sentencing phase like restitution does, compensation is determined by a jury of ordinary people in the community. While this can be a double-edged sword, in general, 12 jurors are much less likely to produce bizarre outcomes than a single, elected individual.

Another benefit to pursuing compensation, as opposed to hoping for restitution, is that matters are heard in civil court. Unlike criminal courts, the burden of proof is much lower. The outcome in a civil case is determined by whichever side the jury believes has the preponderance of the evidence on there side. This means whichever side has slightly more evidence backing their argument wins the case.

Lastly, unlike restitution, which limits damages to only economic damages, compensation allows for defendants to recover compensation for all of the damages recognized under Texas law. This means that damages such as pain and suffering, mental anguish, and loss of consortium can all be compensated.

Perhaps the biggest reason that victims should make their priority pursuing compensation as opposed to restitution is that the path to compensation is much more clearly defined. Not to get too bogged down in a history lesson, but until the advent of stronger monarchies in Europe during the late Middle Ages, all crimes were thought of as between individuals. There really wasn't a clear distinction between criminal and civil law either. However, as the idea took root that some crimes were "crimes against the king," criminal law grew increasingly distinct from civil law.

That's what we inherited from the English after independence, dropping "the king" and substituting "the state" in its place. When someone is criminally charged, for legal purposes, the state is the victim. Slowly, this led to a true divergence between criminal and civil law, with the former being concerned only with punishment and compensation being the province of the latter.

According to a report to the Texas Legislature, this changed in the 1970's with an increased focus on rehabilitation in the criminal system. It is around this time that restitution for criminal matters gained popularity in states throughout the country and in federal courts as well. Even though this provided another avenue for victims to get something for their trouble, it was still done with a focus on rehabilitating the criminal, not properly compensating victims.

The result of all of this is that the rules of the civil legal system are more developed when it comes to how victims go about obtaining compensation. The rules are in place and a good attorney knows how to navigate the process. This makes pursuing a lawsuit far predictable than hoping for restitution.

Lastly, because the process is so well-established, very few lawsuits actually make it in front of a jury. Depending on whose statistics you believe, between 90% and 94% of civil cases end in a negotiated settlement, without ever having to go before a jury. While I don't want to give the impression that this process moves quickly, it generally moves at a fairly predictable pace, depending on the type of case it is.

How Restitution and Compensation Affect Victims

I don't want to give the impression that restitution versus compensation is an either or proposition. There are situations where both avenues are available to victims, some times where seeking compensation through a civil lawsuit is the only avenue open to the wronged, and other incidents where neither of these options will be available to make a victim whole.

The toughest thing for victims is to understand that their situation will always be unique and based upon the facts surrounding their incident. There are no simple hard and fast rules that determine whether one should pursue compensation or hope for restitution. This does not mean that we can't point out some general rules.

If someone is the victim of an intentional act, such as a robbery, theft, or other type of intentional crime, then restitution might be the only avenue in most situations. Since most people don't have enough liquid assets to make pursuing compensation worthwhile, the only means of being made whole is through an insurance policy. However, most insurance companies do not cover intentional acts of harm. In these circumstances, restitution is more likely to yield results and pursuing compensation through a lawsuit.

However, there are some accidents where an insurance company will claim that an act is intentional and not covered by the policy, when in fact it is. A good rule of thumb is to never take the insurance company's word for what the policy covers and seek outside, professional counsel, before making any decisions.

If an incident is the result of negligence or a minor criminal offense, restitution may not be a viable path forward. In those instances, seeking compensation through a civil lawsuit might be the only way for a victim to recover from what they have lost.

Both our civil and criminal justice systems have mechanisms to assist victims in recovering a bit of what they have lost after an incident. They are also designed to hold perpetrators accountable. That they do so in different manners is cause for celebration and confusion. It's fantastic that we believe in justice enough that our system is built to help those who have been wronged, but at the same time, having multiple avenues available to achieve that goal can sow confusion.

Confusion is the seed of lost opportunity. When confronted with different avenues, some people experience an analysis paralysis, which leads them to inaction. Whether one is seeking restitution or compensation, the only way to achieve either one is by understanding the law and being an active participant in your case.