It’s often said that there are no debtors’ prisons in the U.S., and the Massachusetts Supreme Judicial Court has just done its part to ensure that Massachusetts continues that proud tradition.  The case, released on August 8, 2016, is Commonwealth v. Henry.  The facts of Henry are that the defendant probationer was working at a Walmart, where she occasionally “free-bagged” items for friends, which is apparently the term for when you intentionally fail to scan an item, and then place it in a bag as if you had in fact scanned it.  The defendant was charged in 2013 with larceny over $250.00, a felony (G. L. c. 266, § 30).

In 2014, the defendant admitted to facts sufficient for a finding of guilty, and her case was continued without a finding for eighteen months.  At a subsequent restitution hearing, the defendant was ordered to make restitution to the victim in the amount of $5,256.10, which became a special condition of probation (as opposed to “general conditions of probation” such as staying out of trouble and not leaving the state without permission).  The defendant later filed a motion to revise and revoke the probation condition of restitution, arguing that the $5,256.10 figure was inappropriate because it represented the retail price of the “free-bagged” items, as opposed to their significantly lower cost.  The defendant also asserted that she was now unemployed, was not receiving government benefits, and was sleeping on a friend’s couch; accordingly, she argued, it was impossible for her to make the restitution payments.

The judge ordered that the $5,256.10 was the correct measure of restitution, and ordered the probation department to set up a payment schedule for defendant.  The defendant appealed, and the SJC granted her Application for Direct Appellate Review.

The SJC began by recognizing that restitution orders are proper components of sentencing where they are based on the actual loss by the victim.  The proceeding to determine the amount of loss must be fair and reasonable, the prosecutor should advise the defendant ahead of time of the amount of restitution that will be requested, and the victim must demonstrate the amount of loss.  Additionally, if there is no agreement between the prosecutor and the defendant as to the amount of restitution to be ordered, then the court should hold an evidentiary restitution hearing, at which hearing the government bears the burden of proving the amount of loss occasioned by the defendant’s conduct.  At such a hearing, the defendant may cross-examine the victim on the issue of restitution.

The SJC then set forth the proper procedure for restitution orders, to wit:

at the close of the evidentiary hearing, the judge must make two findings in deciding whether to order restitution as a condition of probation and, where ordered, the amount of restitution to be paid during the period of probation.  First, the judge must determine the amount of the victim’s actual economic loss causally connected to the defendant’s crime . . . [and] [s]econd, the judge must determine the amount the defendant is able to pay. . . .  Where a defendant claims that he or she is unable to pay the full amount of the victim’s economic loss, the defendant bears the burden of proving an inability to pay.

Com. v. Henry.

The reason why ability to pay must be considered, according to the Court, is that restitution can only be ordered as a condition of probation, and only willful noncompliance with probation conditions can subject a probationer to criminal sanctions.  Imposing a restitution amount that the probationer cannot pay wastes court time, since the probationer cannot be punished for failure to pay beyond his or her ability.  Worse, the probationer may be arrested on a probation warrant, held in custody, and perhaps even detained on a probation detainer until he or she can demonstrate inability to pay.  “Burdening a defendant with these risks by imposing restitution that the defendant will be unable to pay violates the fundamental principle that a criminal defendant should not face additional punishment solely because of his or her poverty.”  Com. v. Henry.

In addition, the SJC noted, if a judge sets a restitution amount that the probationer cannot pay, and then simply extends the probationary term to allow the probationer more time to pay, then the court is punishing an indigent person more severely based on their impecunity.    That is, since being on probation constitutes a significant imposition on an individual’s liberty, therefore extending probation to allow for continued restitution payments results in greater punishment of poor probationers versus those with means.  For example if a probationer is charged with a crime while on probation, he or she may have their probation revoked based on a preponderance of the evidence standard, even if eventually found not guilty of the new charge.

To ensure that a defendant does not face a longer probationary period because of his or her limited means, the ability to pay determination should be made only after the judge has determined the appropriate length of the probationary period based on the amount of time necessary to serve the twin goals of rehabilitating the defendant and protecting the public.

Com. v. Henry (emphasis added).

The proper procedure and applicable rules for setting a restitution order as a condition of probation, according to the Supreme Judicial Court, are these, namely:

  1. the court determines the appropriate length of probation based on the amount of time necessary to serve the twin goals of rehabilitating the defendant and protecting the public;
  2. the court determines the amount of the victim’s economic loss (the Court said that this is usually going to be wholesale cost, but a victim can overcome this presumption with evidence that the stolen items would have been sold but for the criminal conduct);
  3. the court orders restitution as a special condition of probation at the maximum monthly amount that the defendant is able to pay, provided the total amount does not exceed the actual loss – the amount of restitution ordered should not exceed this monthly amount multiplied by the months of probation, even if that amount is less than the amount of financial loss sustained by the victim; and
  4. the monthly amount must be determined by the judge; it cannot be delegated to the probation department.

In determining ability to pay restitution, the judge “must consider the financial resources of the defendant, including income and net assets, and the defendant’s financial obligations, including the amount necessary to meet minimum basic human needs such as food, shelter, and clothing for the defendant and his or her dependents.”  Com. v. Henry.  The Court affirmed that a judge may attribute income to a probationer if the judge determines that the probationer is earning less than he or she could earn with reasonable effort.

As a criminal defense attorney, this decision gives me hope that I can help future clients avoid the situation in which they are saddled with restitution payment orders that they cannot possibly comply with.  But it also worries me a little, because sometimes my client wants to agree to a monthly payment schedule that he or she cannot afford at the time of sentencing, in lieu of a jail sentence, hoping to secure additional or more gainful employment after being placed on probation.  Under Henry, a judge is unlikely to make such an order, and may be more inclined to simply reject the probation request and impose a period of incarceration.

The decision will also require that the prosecutor and defense counsel confer before any plea hearing in order to fashion a payment schedule, as the probation department is no longer allowed to do so.  It is hard to imagine a District Court or Superior Court judge having the time during the busy criminal session to come up with an appropriate payment plan.

For those who view the Henry case as a windfall for people who plead guilty or admit to sufficient facts in connection with crimes that cause economic loss to others, it should be remembered that a civil suit may be brought against the defendant, and a guilty plea of admission in a criminal case will virtually guaranty a quick and easy victory in a subsequent civil case.

Attorney Kevin D. Quinlan

The Law Offices of Kevin D. Quinlan

2 South Main Street, Suite 201

PO Box 248

Uxbridge, MA  01569

(508) 723-6384



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