Could a South Carolina magistrate jail a defendant repeatedly for unpaid restitution?

Plain-English summary

In 1999, a police chief asked whether a defendant could repeatedly be held in contempt until restitution was paid, including when the defendant could not pay. The Attorney General's office relied on an earlier opinion that treated contempt as a possible way to enforce restitution. It did not endorse automatic repeated jail terms for inability to pay.

The earlier opinion, quoted at length, distinguished indigence from refusal. For an indigent person it suggested a reasonable payment schedule using the fine-payment statute as an analogy, continued court monitoring, and possible adjustment to the schedule as circumstances changed. It said contempt could be considered for failure to follow such a schedule; if a person was not indigent and simply refused to pay, contempt also appeared available. The 1999 letter was informal.

Currency note

This opinion was issued in 1999. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could failure to pay restitution support contempt? A: The AG quoted a prior opinion saying it could. The court's response depended on the payment order and the defendant's circumstances.

What did the opinion say about a defendant unable to pay? A: It suggested that a court could set and later modify a payment schedule for an indigent defendant, by analogy to the rule for fines. It did not say that inability alone justified repeated incarceration.

What if a defendant was able to pay but refused? A: The quoted earlier opinion said contempt appeared to be an enforcement option in that situation.

Did the letter set a fixed time limit for collecting restitution? A: The earlier opinion quoted in the letter said there was no time limit for collection. That was its view in 1999 and should be checked against later law.

Background and statutory framework

The letter cited the magistrate's restitution authority in §22-3-550 and quoted the fine-payment schedule provisions of Section 17-25-350 as an analogy for indigent restitution payers. It relied on a 1995 AG opinion rather than deciding any particular defendant's ability to pay or contempt sentence.

Citations and references

Statutes: §22-3-550; Section 17-25-350.

Official title

Questioning whether a defendant can repeatedly be held in contempt of court for failure to make restitution payments until the restitution payments are made.

Requester

W.S. Hanks, Chief of Police, Honea Path Police Department

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/august-10-1999/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/99aug-10-hanks.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLIE C ON DON
AITORN E Y GENER A L

August 10, 1999

I
I

W. S. Hanks, Chief of Police
Honea Path Police Department
30 N. Main Street
Honea Path, South Carolina 29654
Dear Chief Hanks:
In a letter to this office you questioned whether a defendant can repeatedly be held in contempt of court for failure to make restitution payments until the restitution payments are made. You also referenced a situation where you contend the defendant is unable to make restitution payments and questioned whether that defendant can be held in contempt of court and thereby sentenced to additional jail time for failure to make restitution.

I

l

l.

~

r<·
l

Pursuant to S.C. Code Ann. §22-3-550 (1998), a magistrate may order a criminal defendant to make restitution to a crime victim for any monetary or property loss that resulted from a crime. A prior opinion of this office dated April 21, 1995 stated that 11
• • • it
is well recognized that the failure to pay money in compliance with an order of the court may also constitute contempt of court .... 11 The opinion further advised 11 ( s) hould the Court order a fee schedule for payment of restitution by an indigent, the schedule could be similar to that authorized for the payment of fines in Section 17-25 - 350 of the Code ... . 11 S.C. Code Ann. § 17-25 - 350 (1985) provides In any offense carrying a fine or imprisonment, the judge or magistrate hearing the case shall, upon a decision of guilty of the accused being determined and it being established that he is indigent at that time, set up a reasonable payment schedule for the payment of such fine, taking into

.iJ
Rl'M BElff c. jJ ENNIS But.DI">(;
~~ ~ ~-

•

P OST OFFIC F Box

11549

•

COLL\llJIA, S.C. 29211 - 1549

•

T U .El'fl ON I·: : 803 -734-3970

•

FACS IMIL E: 80:1-2'.D -628]

Chief W. S. Hanks
August 10, 1999
Page 2

f

I
I

consideration the income,
dependents and
necessities of life of the individual. Such payments shall be made to the magistrate or clerk of court as the case may be until such fine is paid in full. Failure to comply with the payment schedule shall constitute contempt of court; however, imprisonment for contempt may not exceed the amount of time of the original sentence, and where part of the fine has been paid the imprisonment cannot exceed the remaining pro rata portion of the sentence. No person found to be indigent shall be imprisoned because of inability to pay the fine in full at the time of conviction. The referenced opinion concluded:
... court-ordered
restitution
imposed
in
addition to a fine or imprisonment should be paid by a defendant. There is no time limit for collection thereof and it would appear that all possibilities should be explored and perseverance maintained. If a defendant is indigent and cannot pay, the Court could establish a fee schedule for payment using Section 17-25-350 as an analogy. The Court maintains jurisdiction to monitor the progress of payment, and based upon all the facts and circumstances could modify the schedule ... , or, if necessary, where the defendant failed to pay pursuant to the schedule contempt of court would be a remedy, just as it is with Section 17-25-350. If the defendant were not indigent, and simply refused to pay, again, contempt of court would appear to be an option for enforcement. This letter is an informal opinion only. It has been written by a designated Senior Assistant Attorney General and represents the position of the undersigned attorney as to the specific questions asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in the manner of a formal opinion.

r

I

Chief W. S. Hanks
August 10, 1999
Page 3

With kind regards, I am,

!
I
I

I

Charles H. Richardson
Senior Assistant Attorney General

kws