Victory! On August 8, 2016, the Massachusetts Supreme Judicial Court held that a judge must evaluate a criminal defendant's financial circumstances before determining how much she must pay in restitution to the victim of her crime. This unanimous ruling holds enormous importance, confirming that people in Massachusetts can not be jailed for being poor. Read our full press release here.

In the case of Commonwealth v. Henry, the Massachusetts Supreme Judicial Court will address whether an order requiring a criminal defendant to compensate the victim of her crime—a restitution order—must account for the defendant’s financial circumstances.

Ms. Kim Henry, a former Walmart cashier, was found guilty of larceny for “free-bagging”—placing merchandise into bags for customers without scanning the items or charging for them. At her restitution hearing, Ms. Henry presented uncontroverted evidence of her indigence. Still, the district court ordered her to pay over $5,000 in restitution to Walmart by the end of her eighteen-month probationary period.

The ACLU of Massachusetts filed an amicus brief arguing that the district court exceeded its authority by requiring Ms. Henry to pay a sum she could not possibly afford. Such an order bears no reasonable relationship to the purposes of sentencing, and conflicts with constitutional principles that prohibit punishing poverty.


ACLU of Massachusetts: State supreme court requires judges to consider defendants' ability to pay restitution


Matthew Segal, Jessie Rossman, and Hallie Pope (ACLU of Massachusetts)