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Rules of Restitution

Among the frequently used dispositional alternatives in juvenile court is the imposition of restitution.  The Court’s ability to order restitution is covered by N.C.G.S. 7B-2506(4) and 7B-2506(22).  The amount of restitution the Court can order is determined by the youth’s delinquency history level with Level 1 capped at $500.00 and Level 2 allowing restitution over $500.00.  While this is the information most defenders are familiar with, this is an over-simplified version of the statutory requirements.

As an initial matter, it is the State’s burden to establish the amount of restitution.  This should be established through presentation of evidence of the specific damage and estimates or receipts verifying the amount requested.  A blanket statement by an alleged victim that a damaged cell phone cost $1500.00, for example, should not be enough to establish the amount.  What brand was the cell phone?  What year/model was the cell phone?  Are there any receipts verifying the requested amount? Was there insurance on the phone?  Was it broken beyond repair or was a screen replacement sufficient?  If the State has established a specific amount, or the parties have agreed to a specific amount of restitution, the Court must also find that it is in the best interests of the youth to pay restitution and that the youth has the ability to make restitution.  If the youth “satisfies the court that the juvenile does not have, and could not reasonably acquire, the means to make restitution,” restitution should not be ordered.

If county or district has a community service program which addresses restitution, defenders should also reference N.C.G.S. 7B-2506(6) and 7B-2506(23) which cap community service hours at 100 hours for level 1 and 200 hours for level 2 dispositions.  As a result, the amount a court can order for restitution may be less than $500.00 depending on the hourly rate established by the program.  The community service must consider the youth’s age, skill, ability, and the seriousness of the offense.  Restitution must be payable within 12 months; and community service may not exceed 12 months.  In addition to all of the above, restitution “should be joint and several” if the juvenile participated with another person or persons.  To determine if your county or district has a community service program, contact your local DJJ or check with your local Juvenile Crime Prevention Council (JCPC).

While the statutes above set out clear requirements for restitution, the following cases are helpful as well. 

1. In re D.A.Q., 214 N.C. App. 535 (2011) (court erred by failing to find that restitution was in the juvenile’s best interest before ordering the juvenile to pay restitution).

2. In re Z.A.K., 189 N.C. App. 354, 362 (2008) (court improperly ordered restitution without finding that restitution was in the juvenile’s best interest).

3. In re M.A.B., 170 N.C. App. 192, 194 (2005) (court did not improperly delegate authority by ordering juvenile to pay up to $500 restitution payable within 12 months with amount to be determined on submission of medical bills to court).

4. In re McDonald, 133 N.C. App. 433, 436 (1999) (court erred in ordering juvenile to pay $200 restitution as it failed to make findings of fact regarding amount of damage suffered by victim and only evidence presented were pictures of damaged property)In re D.A.Q.).

5. In re Schrimpsher 143 N.C. App. 461 (2001) (court erred in requiring the juvenile alone to make restitution when the record revealed at least one other juvenile was adjudicated for breaking and entering and causing damage to a lodge, and none of the other juveniles or adults were required to make restitution).

Defenders should request documentation from the State and Department of Juvenile Justice regarding any alleged restitution and demand hearings where the evidence is insufficient, or the youth simply does not have the means or ability to make restitution.  For additional cases on issues regarding restitution, please contact OJD and remember to view our monthly blog post, Case Law Corner, by Burcu Hensley.




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