What If I Can’t Pay My Restitution Order in Massachusetts?

In a very important opinion delivered today, the Massachusetts Supreme Judicial Court ruled a criminal defendant cannot face additional criminal sanctions if he is unable to pay restitution to a victim as ordered by a judge.  The name of the case is Commonwealth v. Henry.

The defendant worked for almost 12 years as a cashier at Walmart in Salem.  She was caught on surveillance video bagging some of her customers’ items without first scanning them with the cash register (which meant the customers did not pay for those items).  It was later discovered that the customers who received these free items were the defendant’s friends.  She was charged with larceny over $250, and she decided to plead out her case.  A Salem District Court judge continued her case without a finding, placed her on probation for 18 months, and ordered her to pay restitution to Walmart.  At a subsequent restitution hearing, a judge determined the total financial loss suffered by Walmart was $5,256 and ordered the defendant to pay restitution in that amount.  The defendant later asserted that she had an inability to pay the restitution.  She testified that she had been fired from Walmart after her crime was discovered and hadn’t been able to find a new job.  She had no income of any kind.  She had been evicted from her apartment and was staying for free with a friend.  A judge acknowledged the defendant had no ability to pay the restitution figure.  The question for the Supreme Judicial Court in this case was whether a judge ought to consider a defendant’s ability to pay in ordering payment of restitution, and whether a defendant’s probation could be extended in order to allow her to pay the restitution.

The Court began by reviewing the procedural framework for a restitution hearing.  Restitution may be ordered only to compensate a victim for economic losses that resulted from the defendant’s criminal conduct.  If a defendant and the Commonwealth do not agree on a restitution amount, there should be an evidentiary hearing (which means witnesses will testify under oath in court) to allow a judge to determine the appropriate restitution figure.  The prosecutor bears the burden of proving (by a preponderance of the evidence) the amount of restitution owed to the victim.  If the defendant asserts he is financially unable to pay the restitution, he is obligated to establish his inability to pay to the judge.  At the end of the hearing, the judge is required to make two findings: (1) what is the proper amount of restitution owed to the victim? and (2) how much can the defendant afford to pay?

Before today’s opinion, a judge would order a defendant to pay restitution as a condition of probation and if the defendant was unable to pay, the judge would typically extend the probationary period to give the defendant more time.  This practice often resulted in a defendant being on probation for many years to allow him the time to pay the restitution.  Unfortunately for the defendant, if his probation was extended, he continued to be at risk of being found in violation and sentenced to jail.  A probationer is also restricted in where he can travel and live, and forfeits some of his constitutional rights.  The SJC ruled in this case that extension of a defendant’s probation simply because he cannot pay is unlawful.  The Court said in such a circumstance, a defendant would be faced with additional punishment solely as a result of his poverty.  Therefore, the SJC enacted a requirement that a judge consider a defendant’s ability to pay at the time the restitution amount is determined.  If the judge’s restitution order is not sufficient to cover the victim’s total loss, the victim is permitted to sue the defendant in civil court.  The Court also said a judge may not consider a defendant’s inability to pay a restitution order in determining how long of a probationary sentence to impose.

This is an incredibly important decision that will protect financially-strapped probationers from going to jail for an inability to pay restitution.