Judges must know offenders’ ability to pay before ordering restitution, Iowa Supreme Court rules

by Rox Laird | March 26, 2019

Sentencing courts must know how much a convicted offender is reasonably able to pay before ordering payment of restitution to the State, the Iowa Supreme Court ruled in three separate cases March 22.

In all three cases, the sentencing courts ordered offenders to pay restitution without first determining their ability to pay, which violates Iowa’s restitution statute, the Court held in a 6-0 decision. Justice Christopher McDonald, who will be officially sworn in on April 5, did not participate in the decision.

In the lead opinion, State v. Charles Raymond Albright, written by Justice David Wiggins, the Court dismissed Albright’s appeal of his kidnapping conviction and sentence but upheld his claim regarding restitution payment ordered by the sentencing court.

State law breaks restitution payments into two categories: (1) payments to victims, fines, penalties and surcharges; (2) payments to the State for court-appointed attorney and public defender fees and to reimburse crime-related agencies.

The statute requires a sentencing court to order restitution for the first category without consideration of the offender’s ability to pay, whereas it must consider offenders’ ability to pay restitution in the second category. The court must first determine the total amount of restitution owed, however, before assessing the offender’s ability to pay.

How to assess ability to pay?

Based on a prior decision of the U.S. Supreme Court, the Iowa Supreme Court ruled in 1977 that “a court should not order payment of restitution unless the convicted person ‘is or will be able to pay it without undue hardship to himself or dependents, considering the financial resources of the defendant and the nature of the burden payment will impose,’ ” Wiggins wrote.

To determine financial hardship in assessing a reasonable ability to pay restitution, other states consider factors including income, net assets and financial obligations including such basic needs as food, shelter and clothing for the offender and any dependents.

“We find the sentencing court should consider all these factors when awarding the final amount of restitution based on the offender’s reasonable ability to pay,” Wiggins wrote. If the offender is unable to pay the full restitution, he wrote, it has the option of ordering partial or no restitution, or community service in lieu of restitution.

“In summary,” Wiggins wrote, we urge courts to do everything possible to have all items of restitution before the court at the time of sentencing. Courts must wait to enter a final order of restitution until all items of restitution are before the court. Once the court has all the items of restitution before it, then and only then shall the court make an assessment as to the offender’s reasonable ability to pay.”

The Court issued similar rulings March 22 in State v. Kenneth Edward Petty, and in State v. Christopher Ryan Covel.


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February 2024 Opinion Roundup

The Iowa Supreme Court entered opinions in eighteen cases during February 2024. You can read Rox Laird’s analysis of Singh v. McDermott, Selden v. DMACC, and Senator Roby Smith et al. v. Iowa District Court for Polk County. The remaining opinions from February are summarized here.


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