The Massachusetts Supreme Judicial Court’s recent decision in Commonwealth v. Henry imposed clearer defendant-friendly safeguards on judges when imposing restitution in a criminal matter. Additionally, the SJC also held that, in cases of theft from retail stores, the amount of actual restitution is the “replacement value” of the stolen goods; unless the government proves by a preponderance of the evidence that the stolen goods would have been sold, in which case the “retail sales value” should be the amount of restitution.
It had been the longstanding practice to impose restitution in cases regardless of whether or not the defendant was employed or had any ability to pay it. Oftentimes, the defendant, by that time placed on probation, would be brought back before a judge on a probation violation hearing because he wasn’t able to pay per the court order. Way too often, the defendant had either his probation extended so he could somehow find satisfy the restitution amount; or he was ultimately sent to jail.
Moving forward, a judge must take into account a defendant’s ability to pay the restitution amount; and may not impose a longer period of probation or extend the probation because of the person’s inability or limited ability to pay that restitution. Continue reading →