Supreme Judicial Court Hands Down Decision Making Restitution More Fair & Equitable


When a person commits a crime and causes property to be damaged, destroyed, or lost, the issue of restitution may become relevant. Restitution comes into play when, as part of his punishment for the crime he committed, a defendant is ordered to pay the former owner of the property that he damaged or destroyed the value of that property. A problem can arise, however, when the defendant is too poor to be able to repay the former owner in full.

The problem is that, if a person who is ordered to pay restitution fails to pay it, he may be jailed as a result of that failure, and a poor person is far more likely than a person of means to have trouble paying restitution.  Is it not unfair – and unjust – to jail someone simply because he is too poor to pay restitution, when a wealthier person would be allowed to remain free?

The Supreme Judicial Court addressed that question head on in a recent landmark decision: Commonwealth v. Henry, 475 Mass. 117 (2016). To be sure, previous cases had held that, in deciding whether to order restitution, the judge should consider whether the defendant is financially able to pay the amount ordered, but Henry is the first case in which the Supreme Judicial Court laid down a specific procedure that must be followed by judges in such circumstances. The Court wrote as follows:

First, the judge must determine the amount of the victim’s actual economic loss causally connected to the defendant’s crime. The Commonwealth bears the burden of proof as to this finding. The order of restitution may not exceed this amount. Second, 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.

We require a judge to consider the defendant’s ability to pay when setting the restitution amount because a judge may order restitution in a criminal case only as a condition of probation, and therefore the collection of restitution is enforced by the threat or imposition of a criminal sanction for violation of a probation condition. A defendant can be found in violation of a probationary condition only where the violation was wilful, and the failure to make a restitution payment that the probationer is unable to pay is not a wilful violation of probation.

Commonwealth v. Henry, 475 Mass. 117, 121 (2016) (internal citations omitted).

Another important aspect of Henry has to do with the length of time that a defendant may be placed on probation.  Typically, a defendant is ordered to pay restitution as a condition of his probation, which is why a failure to pay restitution can subject a defendant to incarceration.  Probation, while far less restrictive than incarceration, is, itself, a form of punishment that carries with it, among other things, a lowered expectation of privacy, and an obligation to obey conditions that are not otherwise required under the law. Considering this, the Court wrote that the length of time that a defendant will be placed on probation must be determined without taking into account the defendant’s ability to pay restitution.

Practically speaking, this means that a sentencing judge must first decide how long a period of time the defendant will be placed on probation for, must then decide how much restitution the defendant is able to pay each month (while still covering his living expenses, etc.), and may only order the defendant to pay restitution in an amount equal to or less than the number of months of probation ordered, multiplied by the amount that the defendant is able to pay each month. If that multiplication results in a figure that is larger than the value of the damaged or destroyed property, then the amount must be reduced to a figure that is no greater than that value.

Here at KJC Law Firm, LLC, we pride ourselves on remaining abreast of burgeoning rules of law that are handed down by the courts.  If you or someone you love is facing criminal prosecution, or has already been ordered to pay more restitution than he is able to pay, you should consider calling KJC Law Firm, LLC for a free consultation.

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