Can Family Gifts Be Used to Pay Restitution? – Painter v. Ballard


When an individual is convicted of a crime, he or she may be required to pay restitution in addition to serving a jail sentence. Restitution is money owed to the victim of the crime in an effort to “restore” the victim to the position in which he or she was before the crime.  For instance, if, during a burglary, a TV is stolen, restitution from the burglar may include payment for the stolen TV.  If the crime is a battery or an assault, restitution may cover medical bills or lost wages that the victim incurred.

In some cases, an offender will have the money to pay the restitution immediately. However, in many instances, the offender may not have sufficient savings to cover such costs.  Moreover, once in jail, access to income is very limited. For this reason, courts and governments must be creative in seeking money from the offender to cover restitution costs.  A recent case before the Supreme Court of West Virginia considers whether gifts from family members to an offender who is in jail can be used to pay restitution.

In Painter v. Ballard, Mr. Painter was an inmate at the Mount Olive Correctional Complex, serving time for burglary and murder. As part of his sentence, Mr. Painter was ordered to pay restitution of approximately $19,000 to various victims of his crimes and the Crime Victims Fund for West Virginia.  Shortly after beginning to serve his sentence, Mr. Painter was notified that 40% of any earnings he received in jail would be deducted to pay off the restitution that he owed. While the notice of withholding that Mr. Painter received stated that gifts from family and friends into his prison account were exempt from deductions, Mr. Painter soon noticed that deductions were being taken from these gifts.  He filed a grievance, arguing that this was in violation of West Virginia law and the Department of Corrections policies.

His administrative efforts to challenge these deductions were denied, and Mr. Painter filed a writ of mandamus with the court. The Circuit Court immediately dismissed the writ, holding that neither West Virginia’s code nor the Department of Corrections policies limited the sources from which restitution could be collected. The court further held that all sources of Mr. Painter’s assets could potentially be used. Mr. Painter appealed.

On appeal, the Supreme Court held that the deductions from Mr. Painter’s gifts from family and friends were permissible under West Virginia law. According to the court, no law or code restricted a court’s authority to require that restitution be paid from any source of income an inmate might receive, including gifts from family and friends. According to the court, there was no reasonable basis to exclude gifts from the sources of income that could be used to pay restitution, especially in light of the legislative interest in ensuring that inmates paid their obligations to victims.  Accordingly, the Court held that gifts from family and friends counted among the many sources of income available to inmates and were not exempt from collections processes. On this basis, Mr. Painter’s writ was denied.

This Supreme Court case clarifies the reach that courts may have in making sure that restitution payments are not ignored.  If you are facing a potential conviction of a crime for which restitution may be involved, or you have general concerns about how your income, savings, or family finances may be affected by a restitution order, our office can help. The West Virginia criminal defense lawyers at the Wolfe Law Firm have been serving clients in both state and federal courts for more than 25 years. Call us at 1-877-637-5756 or contact us online for a free consultation.

Related blog posts:

Restitution Just One of the Financial Consequences of a Criminal Conviction in West Virginia – State v. Hawkins

A Plea Deal Gone Wrong in West Virginia – State v. Fields

Probation in West Virginia Criminal Casts – State v. Henry