You’ve been caught shoplifting; now you need to repay the store for the item(s) you stole. Should your personal financial circumstances be considered by the judge when deciding how much you should repay the store; and, should the store get the retail value of the item(s)? These were the questions answered by the Supreme Judicial Court in the recent case of Commonwealth v. Henry, SJC-11965, slip op. (August 8, 2016).
A Walmart cashier was captured on video “free-bagging” items, meaning that customers were not being charged. The cashier was given 18-months probation, and ordered to pay Walmart $5,256.10 (the full retail value). The Defendant moved for relief from the amount of restitution, arguing that she had been fired, was thus unemployed, and did not receive any government assistance. The state argued against considering the Defendant’s inability to pay, because the Defendant had caused her own unemployment. The Defendant argued that absent a reduction in the restitution, she would not be able to repay the store, putting her at risk for violating her probation.
Citing a 1985 case, the court reminded all of us that a “judge should ‘consider whether the defendant is financially able to pay..;’” Commonwealth v. Nawn, 394 Mass. 1, 6 and that, “the judge must also decide the amount…and how such payment is to be made.” Id. If the Defendant feels s/he is unable to pay any or all of the restitution, “the defendant bears the burden of proving an inability to pay.” Commonwealth v. Porter, 462 Mass. 724, 732-733 (2012). And, “if the defendant is indigent…[the court] may not order restitution in an amount that the defendant cannot repay.” United States v. Fuentes, 107 F.3d 1515, 1529 (11th Cir. 1997) Moreover, “the failure to make a restitution payment that the probationer is unable to pay is not a willful violation of probation.” See Commonwealth v. Canadyan, 458 Mass. 574, 579 (2010).
Essentially, the Court clarified the obligation of a judge to consider the financial ability of the Defendant in assigning some restitution amount, especially as it was a condition of probation, because to assign an amount that a Defendant had no realistic chance of repaying prior to the conclusion of probation was to put the Defendant at risk of extended probation, violation of probation or a conviction in the case.
As to the question of valuation, the Court made it clear:
“Where items are stolen from a retail store, the actual loss to the [store] is the replacement value of the items, that is their wholesale price, unless…by preponderance of the evidence [it is proved] that the items would have been sold were they not stolen, in which event the actual loss would be the retail price of the items.”
The case was sent back to the trial court for a new restitution hearing to determine whether retail or wholesale value should be assigned to the stolen items, and then an appropriate amount (and time for repayment) of restitution set, after considering the Defendant’s actual financial circumstances.
Having a knowledgeable and experienced criminal defense attorney on your side makes a difference, when the consequences of jail and probation are on the line. If you know someone who has been arrested or is facing probation, contact the attorneys at Hutchins Law, P.C. today.